The state decide who I am. Febrero 2014

Transcript

1 THE STATE DECIDES WHO I AM LACK OF RECOGNITION FOR TRANSGENDER PEOPLE

2 Amnesty International is a global movement of more than 3 million supporters, members and activists in more than 150 countries and territories who campaign to end grave abuses of human rights. Our vision is for every person to enjoy all the rights enshrined in the universal declaration of human rights and other international human rights standards. We are independent of any government, political ideology, economic interest or religion and are funded mainly by our membership and public donations. First published in 2014 by Amnesty International Ltd Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom © Amnesty International 2014 Index: EUR 01/001/2014 English Original language: English Printed by Amnesty International, International Secretariat, United Kingdom All rights reserved. This publication is copyright, but may be reproduced by any method without fee for advocacy, campaigning and teaching purposes, but not for resale. The copyright holders request that all such use be registered with them for impact assessment purposes. For copying in any other circumstances, or for reuse in other publications, or for translation or adaptation, prior written permission must be obtained from the publishers, and a fee may be payable. To request permission, or for any other inquiries, please contact [email protected] Cover photo: The Rally for Recognition was organised by TEA (Trans* Education and Advocacy) at DCU, Dublin, September 2012. © Alison McDonnell amnesty.org

3 CONTENTS ... 3 CONTENTS INTRODUCTION ... 6 n? ... ... 9 A. What are gender identity and expressio B. How many transgender people live in Europe? 11 ... ... ... 11 C. Discrimination against transgender people because of their gender identity ... ... D. Aims and methodology 15 ... E. Terminology ... ... 16 ... ... 1. LEGAL GENDER RECOGNITION AND HUMAN RIGHTS 18 ... 20 1.1 The rights to private life and to recognition before the law 1.2 The right to the highest attainable standard of health and to be free from cruel, inhuman and degrading treatment ... 21 1.3 The right to marry and to found a family and the right to family life ... 26 1.4 The best interest of the child ... 27 ... ... 28 1.5 Intersex people ... ... 30 2. LEGAL GENDER RECOGNITION IN EUROPEAN COUNTRIES Denmark ... 30 2.1 2.1.1 Current laws and practices ... 31 2.1.2 Medical requirements: the psychiatric diagnosis ... 32 2.1.3 Hormone treatments and surgeries 34 ... 2.1.4 Steriliza tion ... 36 2.1.5 Consequences of current law and practices ... 37 2.1.6 Opportunities for changing laws and practices ... 39 2.2 Finland ... 40

4 Current policies and practices ... ... 40 2.2.1. ... 41 ... 2.2.2. Medical requirements: the psychiatric diagnosis 43 2.2.3 Other medical requirements: hormone treatment and sterilization ... ... 2.2.4 Other requirements: change in marital status 44 2.2 .5 Consequences of current law and practices ... 45 ... 47 2.2.6 Opportunities for change 2.3 France 49 ... ... 2.3.1. Case law 49 2.3.2 Current practices and requireme nts ... 50 ... 2.3.3 Consequences of the current practices 53 2.3.4 Opportunities for changing laws and practices ... 56 2.4 Ireland ... 58 2.4.1. Case law and practices ... 58 2.4.2 Consequences of legislative gaps and current practices ... 60 ... 2.4.3 Opportunities for changing laws and practice 64 2.4.4 The General Scheme of the Gender Recognition Bill 2013 ... 65 ... 2.5. Norway ... 70 ... 2.5.1 Current laws and practices ... ... 70 2.5.2 Medical requirements: the psychiatric diagnosis ... 71 2.5.3 Other medical requirements: hormone treatment and surgeries 73 ... 75 2.5.4 The sterilization requirement ... ... ... 2.5.5 Consequences of current practices ... ... 76 2.5.6 Opportunities for changing laws and practices ... 77 2.6 Other Countries ... ... . 79

5 2.6.1 Belgium ... ... 79 ... ... 2.6.1.1 Current law and practices 79 Consequences of current practices and discrimination ... 81 2.6.1.2 2.6.1.3 Opportunities for changing laws and practices 82 ... 2.6.2 Germany ... ... ... 83 2.6.2.1 Current laws and practices ... 84 2.6.2.2 Change of name: the minor solution ... 85 ... 86 2.6.2.3 Change of legal gender: the major solution 2.6 .2.4 Opportunities for changing laws and practices ... 89 3. CONCLUSIONS AND RECOMMENDATIONS ... 90 APPENDIX I: HUMAN RIGHTS STANDARDS ... 95 th APPENDIX II: International Classification of Diseases, 10 Version (ICD-10) ... 100

6 The state decides who I am 6 6 Lack of legal gender recognition for transgender people in Europe INTRODUCTION “ Legal gender recognition is important as it is a validation of who I am. When you are born you get your birth certificate and when you die you get your death certificate. People take that for granted. It follows you all through life. Nobody thinks about it. But if I go into a social welfare office and someone wants to make my life difficult because I don’t have documents reflecting my [ gender identity], I have no legal rights to rely on ... Legal gender recognition also validates you within the rest of the population. If you are see n to be legally recognized then you have more legitimacy within the wider community, within the non- transgender community, and that’s important .” Louise, a transgender woman living in Dublin, Ireland For transgender people, official identity documents reflecting their gender identity are vitally important for the enjoyment of their human rights. They are not only crucial when travelling but also for everyday life; depending on the specific country, individuals may be asked to produce an official document when they enrol in school, apply for a job, access a public library or open a bank account. Index: EUR O1/001/2014 Amnesty International January 2014

7 The state decides who I am 7 Lack of legal gender recognition for transgender people in Europe irst recognized that a state’s refusal In 1992, the European Court of Human Rights (ECHR) f to allow transgender people to change the gender markers on their official documents was a 1 violation of the European Convention on Human Rights. More than 20 years later, however, many transgender people in Europe continue to struggle to have their gender legally recognized. Many states made the change in one’s legal gender contingent on the fulfillment of invasive requirements, which violate the human rights of transgender people, through procedures that usually take years. In these instances, transgender people can obtain legal gender recognition only if they are diagnosed with a mental disorder, agree to undergo medical procedures such as hormone treatments and surgeries, are single or of age. Some other countries simply do not allow for a change in one’s legal gender. In many countries, even those with a reputation for championing equality and human rights 2 such as Belgium, Denmark and Norway, as well as about 20 other countries in Europe , transgender people have to undergo surgeries to remove their reproductive organs, resulting in irreversible sterilization. If they decide not to undergo such surgeries, they must continue to bear documents indicating the gender on the basis of the sex they were assigned at birth – even if that contradicts their appearance and identity. In fact, transgender people face an invidious situation in which they have to choose some human rights at the expense of others. Enjoying all of their human rights is not an option available to them. The choices are stark. Obtain documents reflecting their gender, which would ensure their right to private life, or refuse to divorce their partners? Being acknowledged by the state and enjoying equal recognition before the law, or preserving their reproductive rights by refusing to undergo sterilization? Forcing such choices on transgender people is contrary to the states’ obligations to ensure that everyone can enjoy human rights without discrimination, including on grounds of gender identity and expression. Transgender people should be able to obtain legal gender recognition through quick, accessible and transparent procedures and in accordance with their own perceptions of gender identity. States must ensure that transgender people can obtain documents reflecting their gender identity without being required to satisfy criteria that in themselves violate their European Court of Human Rights, Case of B. v France, no. 13343/87, 1992. 1 According to the Transgender Europe’s Trans Rights Map Index published in May 2013, 24 countries in Europe 2 required transgender people to be sterilized in order to obtain legal recognition of their gender. On 17 December 2013, the Dutch Senate (Eerste Kamer der Staten-Generaal) adopted a bill that had already been adopted by the House of Representatives (Tweede Kamer der Staten-Gen eraal). The law proposal amends Article 28 of the Civil Code which, since 1985, allows transgender ries insofar as it was possible people to obtain legal gender recognition provided that they have adapted their bodies’ appearance through hormone treatments and surge and safe and that they are permanently and irreversibly infertile. The new law will enter into force on 1 July 2014. It provides the possibility for transgender people who are aged 16 and above to obtain legal gender recogni tion legal gender recognition by introducing a declaration to the civil registry supported by an expert’s certificate. EK 33. 351, article I/B https://www.eerstekamer.nl/wetsvoorstel/33351_wijziging_vermelding_van , in Dutch, accessed 2 January 2014. In June 2013, Croatia adopted 05-03/1- 13-2). According to Article 9A, medical evidence from treating physicians or other health the Law on Amendments on the Law on State Registers (No.71 - facilities is needed for the purposes of legal gender recognition. The Ministry of Health is charged with developing guidelines on the legal gender recognition procedure that should also specify what medical evidence is needed (Article 36). In January 2014, such guidelines had not been developed yet. According to Article 37, previous guidelines adopted in 2008 remain in force (26/08). Amnesty International January 2014 Index: EUR 01/001/24

8 The state decides who I am 8 8 Lack of legal gender recognition for transgender people in Europe human rights. For that purpose, legal gender recognition should not be made contingent on psychiatric diagnosis, medical treatments, single status or blanket age requirements. Demonstration for gender legal recognition outside Leinster House in Dublin October, 2012 © Sasko Lazarov /Photocall Amnesty International January 2014 Index: EUR O1/001/2014

9 The state decides who I am 9 Lack of legal gender recognition for transgender people in Europe A. WHAT ARE GENDER I DENTITY AND EXPRESSION? “It is so difficult to live a life where you feel a constant discrepancy between what you are and how others perceive you.” Hélène, Paris, France In all societies, gender norms determine what is deemed “appropriate” behavior for men and women, which may include dress, speech and mannerisms. These gender norms are not homogenous across societies; they differ from place to place and across time. But individuals who transgress these boundaries whose behavior lies outside of the accepted gender norms – – often face stigma and discrimination, harassment, and sometimes even violence and murder. In most countries, individuals have a legal gender that corresponds to the sex they were assigned at birth. This appears on multiple official documents (including birth certificates, identity cards and passports) and determines how they are perceived throughout their lives. Those whose gender identity differs from the sex they were assigned at birth or those who wish to express their identity in ways that are considered at odds with gender norms must choose between suppressing their own sense of self, or publicly transgressing gender boundaries and bearing all the potential negative consequences. People generally do not experience and perceive their gender identities according to one standardized pattern. Transgender people, whose innate sense of their own gender differs from the sex they were assigned at birth, also experience and express their gender identity according to a variety of patterns. Their perceptions of gender identity may also evolve over time. Some transgender people identify themselves as fully male or female; others perceive their gender identity in a continuum between the two. According to a survey undertaken in Belgium, only 55 per cent of those transgender people who were assigned the male sex at birth identified themselves as either fully or mainly female. Similarly, only 60 per cent of those transgender people who were assigned the female sex perceived themselves as either fully or mainly male. The rest identified as neither male nor female, both male and female, or 3 “other”. While some transgender people are willing to undergo all available health treatments, including surgeries aimed at modifying their bodies according to their gender identity, others prefer to access only some procedures, and in some cases, treatments are not sought at all. Throughout the research for this report, Amnesty International spoke to transgender people whose gender identities greatly vary. Joshua was assigned the female sex at birth but perceives himself as a man: “ I’ve seen myself as a male since I was four. I did not even know I was born female until my cousin peed in front of me and I could see the difference in our bodies. My gender identity was firmly established at that point and has not changed over 4 time. ” 3 Joz Motmans, Being transgender in Belgium. Mapping social and legal situation of transgender people, 2010, p. 100 , http://igvm-iefh.belgium.be/fr/binaries/34%20- %20Transgender_ENG_tcm337-99783.pdf , accessed 6 December 2013. 4 Interview with Joshua, Copenhagen, 22 October 2013. Amnesty International January 2014 Index: EUR 01/001/24

10 The state decides who I am 10 10 Lack of legal gender recognition for transgender people in Europe Bjørk was assigne d the male sex at birth : “It’s a bit tricky when it comes to my gender identity. Intellectually I think a third gender would fit me the best. I don’t think I belong to either the male or the female gender. It’s the same with my sexual orientation. I consid er myself as bisexual. I haven’t been happy with my male body since the age of four. My family was transphobic and homophobic. I wanted to come out as a trans person but I always 5 thought about the reactions of those who surrounded me.” N. was assigned the male sex and sees herself as a woman : “I am a woman with a trans background. I perceive myself as a woman who has a little bit of a different history than other women usually do. When I was a child, I wondered about my anatomy. I felt puzzled. When I was with boys, I felt like I was in a foreign country. I learned to speak the language but I felt 6 I was not originally from there. I was 26 when I fully realized that I was transgender.” I don’t Luca was assigned the female sex: “ perceive myself at either one end or the other of the spectrum; I wander somewhere between, or outside. The society and our culture always place people in two categories, so one needs to negotiate [how to position oneself] in different situations. I am a masculine trans. The way I perceived my gender identity has always been the same but the way I describe it has changed 7 over time .” Runar Randi Beate is a man who often wears female clothes and makeup. “ I’m a heterosexual man, and I’m quite pleased with that. The feminine side is a part of me and it has to get out in order for me to feel I am a complete human being. I have to live out that part as well, to a greater or lesser extent. It comes and goes. It depends. The dressing style on the other hand has changed; it is now more 8 fashion- oriented and classy”. Randi Beate from Norway, a man who sometimes needs to express his feminine side © Amnesty International 5 Interview with Bjørk, Copenhagen, 23 October 2013. 6 Interview with N, Helsinki, 16 July 2013. 7 Interview with Luca, Helsinki, 5 July 2013. 8 Interview with Runar, Oslo, 23 June 2013. Index: EUR O1/001/2014 Amnesty International January 2014

11 The state decides who I am 11 Lack of legal gender recognition for transgender people in Europe Hélène was assigned the male sex at birth: “ I am a transsexual. I know that it may make people uncomfortable and that there are not many people who define themselves as transsexuals. I want to undergo genital reassignment surgery, which is important for me in order to live as a woman. I couldn’t do that with male genital organs. I have felt I am a 9 female since the age of four or five but it took me m any years to come out... I was 48.” B. HOW MANY TRANSGENDER PEOPLE LIVE IN EUROPE? The exact number of transgender people living in Europe is unknown. Social scientists have developed various estimates on the prevalence of transgender people in the general population that stir lively debates, especially because they reach very divergent conclusions. In the past, estimations were primarily based on the number of people who had undergone genital reassignment surgeries or were undergoing hormone treatment, using data sourced from health professionals. Other estimations were based on the number of people who obtained legal gender recognition. According to some of these estimates, there may be 10 around 30,000 transgender people in the European Union. However, those estimates fail to take into account all transgender people who do not undergo reassignment surgeries or other health treatments. More recent estimates have been based not only on health related data but also, in some instances, on gender identity related questions undertaken in the context of survey research. Such surveys suggest there could be as many as 1.5 million people in the EU who do not fully identify with the sex they were 11 assigned at birth. C. DISCRIMINATION AGAINST TRANSGENDER PEOPLE BECAUSE OF THEIR GENDER IDENTITY Whether at school or in the workplace, transgender people are often discriminated against 9 Interview with Hélène (pseudonym), Paris, 28 June 2013. 10 A ccording to Eurostat, there were 505 million people living in the EU’s 28 member states as of 1 January 2013. There were 104, 8 women per 100 men. Several studies on the prevalence of transsexualism have been carried out since the 1960s. Such studies however only refer to transsexual people, who constitute just a portion of transsexuals people. According to these estimations, the highest prevalence is 1:11.900 for male-to-female transsexuals and 1:30.400 for female- to-male transgender. For a review of these estimations, see Femke Olyslager and Lynn Conway, “On the calculation of the prevalence of transsexualism”, 2007, http://ai.eecs.umich.edu/people/conway/TS/Prevalence/Reports/Prevalence%20of%20Transsexualism.pdf , accessed 9 December 2013. These are also the highest estimates indicated by the World Professional Association for Transgender Health (WPATH) in Standards of care for the health of transsexual, transgender, and gender non-conforming people, Version 7, p7, http://www.wpath.org/uploaded_files/140/files/Standards%20of%20Care,%20V7%20Full%20Book.pdf 11 Gates indicated in 2011 that 0.3 per cent (1:333) of the US adult population may identify as transgender. If applied to an EU population of about 505 million, that prevalence rate means that there may be approximately 1.5 million transgender people in the EU. Gary J. Gates, How many people are Lesbian, Gay, Bisexual and Transgender? 2011, http://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-How-Many-People-LGBT-Apr-2011.pdf ; Reed indicated that the prevalence of transgender people who seek health treatments might be 0.02 per cent (20:100,000) in the UK. However, 0.6 per cent (600:100,000) of the population may experience some gender variance irrespective of whether health treatment is sought or not. Reed et al., Gender variance in the UK: prevalence, incidence, growth and geographical distribution, 2009, http://www.gires.org.uk/assets/Medpro-Assets/GenderVarianceUK-report.pdf ; Femke Olyslager and Lynn Conway, On the calculation of the prevalence of transsexualism, 2007, indicated that the lower bound prevalence is 0.2 per cent (1:500) or (all sources accessed on 5 December 2013). http://ai.eecs.umich.edu/people/conway/TS/Prevalence/Reports/Prevalence%20of%20Transsexualism.pdf higher, Amnesty International January 2014 Index: EUR 01/001/24

12 The state decides who I am 12 12 Lack of legal gender recognition for transgender people in Europe because of widespread prejudices and gender-based stereotypes stemming from standardized notions of masculinity and femininity. Such discrimination occurs irrespective of whether or not transgender people bear documents that reflect their gender identity. However, the lack of such documents can further expose transgender people to discrimination whenever they have to produce a document with gender markers that do not correspond to their gender identity and expression. Such involuntary “outings” are a major concern in countries where transgender people cannot access legal gender recognition or where burdensome and lengthy procedures make it difficult to do so. In a European Union Agency for Fundamental Rights (FRA) survey of lesbian, gay, bisexual and transgender people in Europe (hereafter referred to as FRA LGBT survey), 29 per cent of the transgender respondents said they had been discriminated against in the workplace or 12 while looking for jobs in the year ahead of the su Thirty -five per cent of them said they rvey. had experienced violence or the threat of violence during the five years ahead of the survey. Fifty per cent of those who had experienced violence or the threat of violence in the 12 months ahead of the survey, perceived they had been victimized because of their gender 13 In recent years, dozens of transgender people have been killed in Europe at least identity. – 14 84 since January 2008, with the highest numbers in Turkey (34) and Italy (26). Although few states in Europe collect disaggregated data on hate crime perpetrated on grounds of gender identity, existing statistics raise concern. For example, more than 300 hate crimes were perpetrated against transgender people in England and Wales in the United 15 In some instances, public Kingdom in less than a year between 2011 and 2012. authorities, including the police, harass transgender people . For example, in 2012 dozens of transgender women in Greece were arrested and forced to undergo HIV tests. The arrests were made on the basis of a regulation that had been introduced in May of that year, then suspended in June 2013 and subsequently reintroduced in July. European Union Agency for Fundamental Rights, European Union lesbian, gay, bisexual and transgender survey, results at a glance, 2013, pp. 21-22, 12 http://fra.europa.eu/sites/default/files/eu-lgbt-survey-results-at-a-glance_en.pdf, accessed 5 December 2013. 13 European Union Agency for Fundamental Rights, European Union lesbian, gay, bisexual and transgender survey, results at a glance, 2013, pp. 21-22, http://fra.europa.eu/sites/default/files/eu-lgbt-survey-results-at-a-glance_en.pdf, accessed 5 December 2013. 14 Trans-Murder Monitoring Project, Transgender Europe, last data update 21 November 2013 http://www.transrespect-transphobia.org/en_US/tvt-project/tmm- results.htm/tdor-2013 , accessed 5 December 2013. 15 The police recorded more than 43,000 hate crimes between April 2011 and March 2012. Hate crimes against transgender people include any criminal offence that is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender, or perceived to be transgender, , accessed 5 December to-2012 https://www.gov.uk/government/publications/hate-crimes-england-and-wales-2011- --2/hate-crimes-england-and-wales-2011-to-2012 2013. For individual cases of transphobic hate crimes and information on legislative gaps in Europe, see Because of who I am: homophobia, transphobia and hate crimes in Europe (Index: EUR 01/014/2013). Index: EUR O1/001/2014 Amnesty International January 2014

13 The state decides who I am 13 Lack of legal gender recognition for transgender people in Europe In May 2013, the police in the city of Thessaloniki arbitrarily stopped a number of 16 transgender women for identity checks and then arrested them for several hours. NA: DISCRIMINATED AGA AN INST AT SCHOOL Ann a, a 26 year old transgender woman interviewed by Amnesty International, experienced discrimination and violence in an evening school for secondary educatio n in Athens, Greece. School authorities refused her permission to express her gender identity. She told Amnesty International: “I went to the headmaster’s office in order to enrol and he asked me if I was there to enrol my brother. I answered no and I told him my name was Ann a. His colleague interrupted us and told him my name was Panagiotis [Anna’s legal male name]. The headmaster told me that he had been informed about my situation and that he wouldn’t accept any gay or trans in his school. He said I had to cut my hair, stop wearing make - up, wear men’s clothes and generally act as a male. He tried to alter my identity and suppress my rights... I was frightened and I accepted those conditions for a month... the worst month of my life. Other pupils made fun of m e but when I told the headmaster they were behaving like that because I was a trans person he replied that I was not trans because 17 I hadn’t changed my gender. He said I was a gay man who wanted to show off in female clothes.” Anna was eventually allowed to wear clothes that expressed , other pupils continued to her gender identity. Nevertheless harass and threatened her with violence and she felt school authorities did not take effective action to put an 18 In June 2012, Anna was victim of a serious attack when a pupil and his friend poured end to the situation. gasoline on her and attempted to set her on fire just outside the school premises. Amnesty International was also informed by Anna’s lawyer that while a police car arrived at the scene of the incident , the attack was not 19 subsequently investigated. Despite the intervention of the Greek Ombudsperson, An n a continued to face hostile and transphobic behaviour by the school administration after she registered to the upper secondary school in September 2013. An na also reported being subjected to verbal abuse and harassment by other pupils because of her gender identity. In January 201 4 Ann a told Amnesty International that she felt forced to leave school because of the harassment she had experienced. 16 Greece must withdraw the provision on forced HIV testing and end harassment against transgender women, (Index; EUR 25/012/2013), http://www.amnesty.org/en/library/asset/EUR25/012/2013/en/2d74d0f9-f321-4b55-a55f-44346ed3780c/eur250122013en.pdf 17 Interview with Anna, 28 March 2013. 18 In a letter to the Minister of Education and Religious Affairs dated 5 April 2013, Amnesty International raised concerns about the discrimination Anna experienced at school. The letter sought further information on the measures taken by school authorities and other educational competent authorities to protect Anna from threats of violence and put an end to the discrimination she was experiencing. The Ministry replied on 10 July 2013 stating that the competent authority dealing with the official complaint Anna filed against the headmaster concluded that he handled a complicated situation in the best way possible. Anna’s lawyer, 15 January 2014. Interview with Elektra Koutra, 19 Amnesty International January 2014 Index: EUR 01/001/24

14 The state decides who I am 14 14 Lack of legal gender recognition for transgender people in Europe L. CAVALIERO: SEXUALLY HARA SSED BY HIS UNIVERSI TY PROFESSOR L. Cavaliero is legally a female but he identifies more as a male. He has a gender queer appearance and he is not undergoing any health treatment to physically transition to the male gender. He was haras sed and assaulted by a university professor in Berlin. He told Amnesty International: “ When I started his course, I presented myself as a trans person to everyone and I said I preferred the masculine pronoun. Sometimes he erring to me as ‘this woman who wants to be a man’. At some point the made fun of me, for example by ref other students started reacting because they were shocked by his behaviour, but he didn’t stop. I went to his office to discuss the topic for the exam. He referred to me with the female pronoun, so once again I said I preferred the masculine one. He told me I was the first trans person he had ever met and that he had a lot of questions... At some point he asked me if I had male or female genitals... and he tried to grab in between my told him he was not allowed to do that... He came towards me and then he started touching me. I was legs. I 20 against the wall. I screamed and then ran away.” LOUISE: DISCRIMINATE D AGAINST IN THE WOR KPLACE work in the transport industry. In late 2006, she Louise is a transgender woman living in Dublin, who used to informed her employer that she intended to start her physical transition to her female gender. She was ready to resign as she thought that her transition would be problematic in that particular working env ironment. However, her managers appeared to be supportive and encouraged her to stay. Having decided to stay, she accessed hormone therapy, changed her legal name in March 2007 and started working as “Louise”. Problems arose almost immediately. At the end of March, her managers told her she had to “go back to the male mode” I for client meetings and she was banned from using the female toilets. Louise did not accept this position. “ struggled to get to this point and I’m not moving back ” she told Amnesty In ternational. Her manage r started for example, outing her in public; he referred to her by her previous male name in front of clients. In early April, the manager said that the company had bought new premises and asked Louise to work from home for a month b ecause, as he put it, “there is an atmosphere in the office”. Louise worked from home from 24 April to the end of July. She repeatedly asked to return to the office but was told there was no room. However, Louise knew her desk was free up until the beginni ng of July. In the middle of July, the manager told her she was not ed productive enough and suggested she look for another job. She found another job in July 2007 but it fell 21 through after a couple of weeks. Interview with L. Cavaliero, Berlin, 7 November 2012. 20 21 Louise took her case to the Equality Tribunal, the body responsible for dealing with cases of discrimination. The Tribunal found that she was discriminated against on grounds of gender and disability, and that the request made by the employer to work from home was discriminatory. In July 2007, Louise asked to be reinstated in her previous job but her employer offered another position with unsociable hours and low pay instead, which she refused. The Equality Tribunal considered this treatment as discriminatory. See Decision No. DEC -S2011-066, Hannon v First Direct Logistics Limited, 29 March 2011. Index: EUR O1/001/2014 Amnesty International January 2014

15 The state decides who I am 15 Lack of legal gender recognition for transgender people in Europe D. AIMS AND METHODOLOGY This report illustrates the human rights violations experienced by transgender people stemming from the requirements imposed on them to obtain legal recognition of their gender. In highlighting these requirements, including psychiatric diagnosis, medical procedures and divorce, it underscores the plight of transgender people forced to choose which rights to give up in order to enjoy others. The report shows the consequences of the current lengthy legal gender recognition procedures on the rights of transgender people, in particular the rights to recognition before the law, privacy and health, and to be free from discrimination and from inhuman and degrading treatment. This report does not focus specifically on the human rights violations experienced by intersex people (see 1.5). Chapter 1 introduces some common problematic aspects of procedures on legal gender recognition in Europe and the human rights violations they entail. A summary of the applicable international standards is included in Appendix I. provides an overview of existing legal gender recognition procedures in seven Chapter 2 It European countries: Belgium, Denmark, Finland, France, Germany, Ireland and Norway. includes also succinct information on the current civil and criminal laws protecting against discrimination and hate crimes on grounds of gender identity. Individual case studies illustrate the impact of the current legal gender recognition procedures on the lives of transgender people in Denmark, Finland, France, Ireland and Norway. Chapter 3 draws conclusions and identifies both general and country specific recommendations. The countries covered in this report were identified on the basis of two main criteria: a) the presence of compulsory requirements for legal gender recognition that violate the human rights of transgender people; and, b) the presence of opportunities for amending current laws, policies and practices, and a context to which Amnesty International could bring an added value to achieving such change. The information included in this report was collected by desk research undertaken from August 2012 to December 2013, and from research undertaken by Amnesty International sections in Belgium, Denmark, Finland and Norway and a number of field-research missions. These include short 3-day missions to Finland (November 2012) and Germany (November 2012), and longer 6-day missions to Norway (June 2013), France (July 2013) and Ireland (October 2013). Information was also collected in the context of Amnesty International’s participation in international conferences and seminars and in the framework of Amnesty International’s ongoing work on homophobic and transphobic hate crimes. In -depth research was undertaken in Denmark, Finland, France, Ireland and Norway, where individual case studies have been researched and meetings held and contacts maintained with authorities. Research undertaken in Belgium and Germany was more limited in scope and aimed primarily at reviewing the main laws and practices applicable to legal gender recognition. In the context of the research for this report Amnesty International interviewed about 70 transgender individuals, 15 health and legal experts and representatives of more than 25 transgender organizations in the countries covered. Interviews with transgender individuals Amnesty International January 2014 Index: EUR 01/001/24

16 The state decides who I am 16 16 Lack of legal gender recognition for transgender people in Europe were undertaken in English, Danish, Finnish, French and Norwegian, without interpretation. Most of them were transcribed and translated into English when applicable. The quotes from the interviews reported here were lightly edited for brevity and clarity only. Interviewees are identified in accordance with their informed consent, sought by Amnesty International researchers in each interview. In referring to interviewees the report always uses their preferred description of their gender identity and their preferred pronoun. Amnesty International acknowledges the crucial support of Transgender Europe and the European region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) in the context of this research. E. TERMINOLOGY gender Cis people are individuals whose gender expression and/or gender identity accords with conventional expectations based on the physical sex they were assigned at birth. In broad terms, “cisgender” is the opposite of “transgender”. each person’s deeply felt is a very personal and subjective matter. It refers to Gender Identity internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerism. refers to the means by which individuals express their gender identity. Gender expression Thi s may or may not include dress, make-up, speech, mannerisms and surgical or hormonal treatment. Gender marker is a gendered designator that appears on an official document such as a passport or an identity card. It may be an explicit designation such as “male” or “female”, a gendered title such like Mr or Ms, a professional title, a gendered pronoun, or a numerical code which uses particular numbers for men and for women (for example, odd numbers and even numbers). gender identities Gender queer refers to , falling thus outside other than “man” and “woman” gender binary . of the refers to a range of medical or n Gender reassignment treatment on-medical treatments that a transgender person may wish to undergo. Treatments may include hormone therapy, sex or gender reassignment surgery including facial surgery, chest surgery, genital or gonad surgery, and can include sterilization. In some states, certain forms of gender reassignment treatment may be compulsory for legal gender recognition. Not all transgender people feel a need to undergo gender reassignment treatment. refer to operations aimed at modifying genital characteristics Genital reassignment surgeries to accord with a person’s gender identity. In some countries these surgeries result in irreversible sterilization as they entail the removal of reproductive organs. Index: EUR O1/001/2014 Amnesty International January 2014

17 The state decides who I am 17 Lack of legal gender recognition for transgender people in Europe Intersex individuals possess genital, chromosomal or hormonal characteristics that do not correspond to the given standard for the “male” or “female” categories of the sexual or reproductive anatomy. Intersexuality may take different forms and cover a wide range of conditions. y for profound emotional, affectionate and Sexual Orientation refers to each person’s capacit sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender. , or , people are individuals whose gender expression and/or gender identity Transgender trans differs from conventional expectations based on the physical sex they were assigned at birth. A transgender woman is a woman who was assigned the “male’ sex at birth but has a female ssigned the “female” sex at birth but gender identity; a transgender man is a man who was a has a male gender identity. Not all transgender individuals identify as male or female; “transgender” is a term that includes members of third genders, as well as individuals who identify as more than one gender or no gender at all. Transgender individuals may or may not choose to undergo some, or all, possible forms of gender reassignment treatment. Transsexual individuals have a gender expression and/or gender identity that differs from conventional expectations based on the physical sex they were assigned at birth and who wish to undergo, are in the process of undergoing or have undergone, gender reassignment treatment. Transsexualism is included in the WHO International Statistical Classification of th version) as a mental and behavioural Diseases and Related Health Problems (ICD-10 disorder (See Appendix II). Transvestite (cross-dresser) describes a person who regularly, but not constantly, wears clothes mostly associated with a gender other than the gender they were assigned at birth. Amnesty International January 2014 Index: EUR 01/001/24

18 The state decides who I am 18 18 Lack of legal gender recognition for transgender people in Europe GNITION AND 1. LEGAL GENDER RECO HUMAN RIGHTS “Legal gender recognition is important because, once and for all, I wouldn’t have to battle with people [for anything] I have a right [to], like social welfare. Having a legal gender recognition certificate would make these issues easier, instead of fighting every corner, which is what I’ve had to do. I want to be recognised as who I bloody well am. It’s ridiculous that the state doesn’t recognize me as who I am.” Victoria, a transgender woman living in Dublin Internationally protected human rights are applicable to gender identity as acknowledged by the Yogyakarta Principles, which crystallize the current status of human rights law in relation to gender identity and sexual orientation. Developed in 2006 by lawyers, scholars, NGO activists and other experts, these Principles have been referred to by several international and regional organizations, governments and other authorities in the context of human rights treaties’ monitoring acti vities or when developing policies on equality and non- 22 discrimination. 22 Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity. (accessed 15 January 2014). For examples of the impact of the Principles and the references made to them by http://www.yogyakartaprinciples.org/principles_en.htm international organizations and governments, see: Ettelbrick,P.L., Trabucco Zerán, A., The impact of the Yogyakarta Principles on International Human Rights Law Developments, 2010, http://www.ypinaction.org/files/02/57/Yogyakarta_Principles_Impact_Tracking_Report.pdf, accessed 15 January 2014 Index: EUR O1/001/2014 Amnesty International January 2014

19 The state decides who I am 19 Lack of legal gender recognition for transgender people in Europe “ All human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights. ” Principle 1, Yogyakarta Principles Central to the respect for the human rights of transgender people is the recognition of gender identity as a prohibited ground of discrimination. This is highlighted by the United Nations Committee on Economic, Social and Cultural Rights (CESCR): “Gender identity is recognized as among the prohibited grounds of discrimination; for example, persons who are transgender, transsexual or intersex often face serious human rights violations, such as 23 The United Nations Committee on the harassment in schools or in the workplace.” Elimination of Discrimination against Women has stated: “ The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste and sexual orientation and 24 gender identity. ” Gender expression should equally be considered as a protected ground, included in open-ended lists of grounds of discrimination in human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR, Articles 2 and 26) or the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, Article 14). States can pursue legitimate aims by collecting, recording and keeping demographic information on the population, provided they put in place safeguards to ensure confidentiality and respect for the right to privacy. This can and often does include collecting information on gender. Recording information on gender is for example important for public health purposes or for designing, implementing and evaluating policies for combating discrimination on grounds of gender and gender-based violence. Consequently, many forms of official documents issued to individuals, such as passports, ID cards and driving licences, include a gender marker. This may be explicit, such as a field 25 labelled “sex” marked with an M or F signifying “male” or “female” respectively, or implicit, like a unique identifying number that includes an even dig it for “male” and an odd digit for “female”. Transgender people who have not been issued official documents reflecting their gender identity have to constantly disclose information on their gender identity, even when they prefer it to remain confidential. As a result they may be questioned about their identities and are at risk of being suspected of fraud, harassed, discriminated against or even physically attacked. 23 UN CESCR, General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights, 2009, para32. 24 UN CEDAW, General Recommendation No. 28: The Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 2010, para18. 25 There are countries that sometimes issue documents with other markers. For example, Australia, Denmark and New Zealand issue passports with an X gender marker ID cards with gender markers for “male”, “female” and “other”. and India issues passports with an E, while Nepal issues Amnesty International January 2014 Index: EUR 01/001/24

20 The state decides who I am 20 20 Lack of legal gender recognition for transgender people in Europe States must ensure that transgender people can obtain legal recognition of their gender – including issuing all documents with correct gender markers and changing the gender-related – through a quick, accessible and transparent information kept in state-run registries tity, while procedure in accordance with the individual’s own sense of their gender iden preserving their right to privacy. OFFICIAL DOCUMENTS, DISCRIMINATION AND E U LAW As show n by the many cases included in this report, t ransgender people who do not have documents reflecting their gender identity and expression can be discrimin areas such as employment, education ated against in and access to goods and services. Procedures aimed at allowing transgender people to obtain legal recognition of their gender are therefore essential to ensure that they are not discriminated against. EU anti - discrimination law does not explicitly prohibit discrimination on grounds of gender identity and expression. However, the Charter of Fundamental Rights of the European Union prohibits discrimination on an open -ended list of grounds (Article 21). Gend er identity and expression are not protected grounds in EU Directives aimed at combating discrimination on grounds of sex, including Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between women and men in the access to and supply of goods and services and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in ation. However, the European Court of Justice found in several cases (see matters of employment and occup Appendix I) that that discrimination against people who intend to undergo, are undergoing or have undergone “ gender reassignment ” may amount to sex discrimination. Such protection is narrower than what would be provided on grounds of gender identity. Gender identity cannot in fact be construed as referring exclusively to “gender reassignment” and protection under EU law should be extended to cover the full range of gender identity and expression. 1.1 THE RIGHTS TO PR IVATE LIFE AND TO RECOGNITION BEFORE THE LAW Transgender individuals whose official documents do not reflect their gender identity, name or gender expression must disclose they are transgender every time they produce thes e documents. In many countries, this is almost a daily occurrence. In situations where official documents are required to obtain goods or services – for example, in finding employment, enrolling in education, obtaining housing, or claiming welfare benefits – transgender individuals are forced to give up aspects of their right to private life in order to obtain them. A 20 -year-old transgender man in Finland said: “I still have a female name and identity number, and I have had problems with my ID. For instance, almost every time I try to collect a parcel from the post office, they question whether the passport is mine. Also, the travel card has my identity number on it and when I try to get on a bus, the driver often claims it is 26 not my card as it says female .” This person expressed the wish to remain anonymous. 26 Index: EUR O1/001/2014 Amnesty International January 2014

21 The state decides who I am 21 Lack of legal gender recognition for transgender people in Europe It is vital that states allow transgender people to change their gender markers and their name on all documents, in order to protect their right to private life. Those states that have not put in place a procedure to ensure legal gender recognition of transgender people, including Ireland, or those where legislative gaps make it impossible for transgender people to obtain 27 documents reflecting their gender identity, including Lithuania, violate their right to private life. This right is protected by international and regional human rights standards including the International Covenant on Civil and Political Rights (ICCPR, Article 17) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, Article 8). The European Court of Human Rights has found states to be in breach of Article 8 of the ECHR in several instances where transgender individuals were not allowed to obtain legal recognition of their gender. The impossibility to obtain documents that reflect gender identity and expression may also constitute a violation of the transgender individuals’ right to recognition before the law, which is protected under international human rights law, including by the ICCPR (Article 16) and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW, 28 Article 15). The rights to private life and to recognition before the law may also be violated by states where procedures on legal gender recognition exist but are overly lengthy and/or contain mandatory criteria to be fulfilled that in effect exclude some groups of transgender people. Such exclusion could occur, for example, when the procedures require medical treatments, including surgeries, that some transgender people cannot undergo because of health related problems, and where access to these procedures is contingent on the individual receiving a specific psychiatric diagnosis. 1.2 THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH AND TO BE FREE FROM CRUEL, INH UMAN AND DEGRADING TREATMENT In recent years, some positive changes have occurred in a few European countries including the Netherlands, Portugal, Spain and Sweden. Legislative reforms enacted in these countries have abolished some of the problematic requirements imposed on transgender individuals to 27 In Lithuania, Article 2.27, para1 of the Civil Code adopted in 2001, provides that an un married adult of full age has the right to “change the designation of sex” if it is medically possible. Article 2.27, para .2, states that the conditions and the procedure for “changing the designation of sex”, shall be prescribed by law. As such a law was never adopted, transgender people in Lithuania cannot obtain legal recognition of their gender. Civil Code available in English here: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=245495 , accessed 2 January 2013. In 2007, the European Court of Human Rights found in L. v Lithuania that this gap amounted to a violation of the applicant’s right to private and family life (Article 8). The applicant, a trans gender man, had undergone some gender reassignment surgeries but could not undergo genital reassignment surgery, as it was not available in Lithuania. As a result, the applicant could not change his personal code, mentioned on his birth certificate and passport, which indicated that he was legally a female (the code started with the digit 4 for female; males are assigned the digit 3). 28 Yogyakarta Principles on the applications of human rights Law in relation to sexual orientation and gender identity, Principle 3. The Human Rights Committee, tasked to monitor the implementation of the ICCPR, found in several instances that the state’s failure to issue birth certifi cates or to keep civil registries amounted to a violation of Article 16 and led to the violation of other rights included access to social services or education. See for example: Concluding Observations on Albania, CCPR/CO/82/ALB (HRC, 2004) , para. 17, Concluding Observations on Bosnia and Herzegovina, CCPR/C/BIH/CO/1 (HRC, 2006) , para. 2, Concluding Observations on CCPR/C/COD/CO/3 (HRC, 2006) , para 25. the Democratic Republic of Congo, Amnesty International January 2014 Index: EUR 01/001/24

22 The state decides who I am 22 22 Lack of legal gender recognition for transgender people in Europe 29 Moreover, in 2011, the German obtain legal gender recognition, including sterilization. Constitutional Court found that the irreversible surgery and the sterilization requirements 30 In 2009 foreseen by domestic legislation on legal gender recognition were unconstitutional. the Austrian Constitutional Court found that genital surgeries should not have been a 31 prerequisite to allow transgender people to change their names. However, legal gender recognition procedures in the majority of European countries require the individual to fulfil a strict set of criteria. In many cases, these requirements violate the human rights of transgender individuals, including the rights to the highest attainable standard of health and to be free from cruel, inhuman or degrading treatment. Transgender individuals are thus forced to choose between these rights and the rights to private life and recognition before the law outlined above. In many countries, transgender individuals cannot obtain legal gender recognition unless they psychiatric diagnosis. The World Health undergo psychiatric assessment and receive a Organization (WHO) currently categorizes “gender identity disorders” under “mental and 32 th behavioral disorders” in its International Classification of Diseases (ICD -10 version, adopted on 17 May 1990). In addition, the fifth version of the Diagnostic and Statistical Manual of Mental Health Disorders (DSM -V) of the American Psychiatric Association (APA), 33 disorders. adopted in 2013, includes “gender dysphoria” in the list of mental 29 In Spain, a new law (3/2007 of 15 March) was adopted in 2007 that requires psychiatric diagnosis and medical treatments, and excludes minors from its scope, but it does not require genital reassignment surgery and sterilization, http://www.boe.es/boe/dias/2007/03/16/pdfs/A11251-11253.pdf , in Spanish, accessed 2 January 2013. In Portugal a new law (7/2011 of 15 March) was adopted in 2011 that requires psychiatric diagnosis and excludes minors from its scope, but it does not include other compulsory medical requirements, http://dre.pt/pdf1sdip/2011/03/05200/0145001451.pdf , in Portuguese, accessed 2 January 2013. In Sweden, a new law on legal gender recognition, which entered into force on 1 July 2013 (SFS 2013: 405), requires transgender people to have lived in accordance with their gender identity “since a long time” and excludes minors from its scope, but it abolished the sterilization requirement included in the previo us legislation adopted in 1972, http://rkrattsdb.gov.se/SFSdoc/13/130405.PDF , in Swedish, accessed 2 January 2013. For legislative changes in Netherlands see note 2. See chapter 2.6.2.3. 30 31 Verfassungsgerichtshof/B1973/08, judgment of 3 December 2009. In 2006 the Constitutional Court had annulled an internal order issued by the Ministry of Interior in 2006 (Transsexuellen Erlass) according to which transgender people could have changed their name only after having complied with several medical requirements and having changed their sex in the Register of Births, which was possible only for transgender people who were not married. Verfassungsgerichtshof/B947/05, judgment of 21 June 2006. 32 ICD-10, Chapter V, Mental and Behavioural Disorders, F64 Gender Identity Disorders. Gender Identity Disorders include: transsexualism (F64.0), dual-role transvestism (F64.1), gender identity disorders of the childhood (F64.2), other gender identity disorders (F64.8), gende r identity disorder, http://apps.who.int/classifications/icd10/browse/2010/en#/F60-F69 , accessed 4 December 2013. The American Psychiatric unspecified (F64.9), Association (APA) removed “homosexuality” from its Diagnostic and Statistical Manual of Mental Health Disorders (DSM) in 1973. It took al most 20 more years for the World Health Organization (WHO) to depathologize “homosexuality”, which it deleted from the Internation al Classification of Diseases (ICD) on 17 May 1990. For further details, see appendix II. IV, “For a person to be diagnosed with gender dysphoria, there must be a marked difference between the individual’s expressed /experienced 33 According to the DSM- gender and the gender others would assign him or her, and it must continue for at least six months. In children, the desire to be of the other gender must be present Index: EUR O1/001/2014 Amnesty International January 2014

23 The state decides who I am 23 Lack of legal gender recognition for transgender people in Europe The psychiatric diagnosis is very often based on these categories. In some countries, including Denmark, Finland and Norway, access to medical treatments necessary to obtain legal gender recognition, including surgeries, is made contingent on the specific and narrowly defined diagnosis of transsexualism (F64.0, See Appendix II). Transgender people who are th diagnosed with other “gender identity disorders” included in the ICD -10 version, cannot access such treatments and are eventually excluded from the possibility of obtaining legal recognition of their gender, unless if they access treatments privately or abroad. In countries where legal gender recognition is contingent on obtaining such a diagnosis, individuals who wish their gender identity to be reflected on official documents must submit the fact that their gender identity does not accord – to a notion that t heir transgender status – is a mental disease. Most of the transgender der they were assigned at birth with the gen people Amnesty International spoke to for this report expressed the view that psychological counselling would be helpful before and during the transitioning phase. However, the psychiatric diagnosis is a practice many transgender people find demeaning as well as unnecessary for the purposes of obtaining legal gender recognition. In some states, including Denmark, France and Germany, transgender people have to undergo psychiatric diagnosis even if they simply want to change their name. Of course, trans people have the right to see a Ely, a trans man living in Belgium, said : “ psychiatrist if they want too... What is wrong is the [idea that] you need a psychiatric opinion 34 to be who you want to be.” In 2010, the World Professional Association for Transgender Health (WPATH), in urging the worldwide depathologization of gender non-conformity, stated: “The expression of gender characteristics, including identities, that are not stereotypically associated with one’s assigned sex at birth is a common and culturally diverse human phenomenon [that] should 35 not be judged as inherently pathological or negative.” In fact, the reality of the psychiatric diagnosis requirement is that medical professionals are making decisions on identity features that are personal and do not manifest themselve s in a uniform and consolidated pattern. T ransgender people who spoke to Amnesty International generally felt the diagnosis was based on gender stereotypes . Charlie , a transgender man living in Denmark , professionals] that said: “ You have to try to convince [the mental health your transgender identity is not a whim. They kept asking whether I was sure that I was not a lesbian and whether I had tried to do this or that to live as a woman. They were mainly and verbalized. This condition causes clinically significant distress or impairment in social, occupational, or other important areas of functioning,” , accessed 4 December 2013.For further information, see the APA factsheet on “gender dysphoria”, http://www.psych.org/practice/dsm/dsm5 http://www.dsm5.org/Documents/Gender%20Dysphoria%20Fact%20Sheet.pdf , accessed 20 December 2013. 34 Interview with Ely, 18 December 2013. 35 WPATH, World Professional Association for Transgender Health, Board of Directors, 2010, WPATH De-Psychopathologisation Statement, http://tgmentalhealth.com/2010/05/26/wpath-releases- de-psychopathologisation-statement-on-gender-variance/ WPATH, Standards of Care (SOC) for the Health of Transsexual, Transgender, and Gender Non-conforming People, 7th Version, p. 4, http://www.wpath.org/uploaded_files/140/files/Standards%20of%20Care,%20V7%20Full%20Book.pdf Amnesty International January 2014 Index: EUR 01/001/24

24 The state decides who I am 24 24 Lack of legal gender recognition for transgender people in Europe interested in what I liked in bed. They asked me how often I masturbated, if I wanted to be the dominant partner in bed. You constantly feel you have to give the right answer... that you are under examination. When I said that I was sexually dominant, he [the mental health professional] said I could be a man because that was a typical masculine behaviour. His 36 approach was very black or white.” The United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) requires states to ensure that state policies and practices are not based on, Article 5a of the or have the effect of reinforcing, gender stereotypes. According to modify the social and cultural patterns of Convention, states should take measures to: “ conduct of men and women, with a view to achieving the elimination of p rejudices and customary and all other practices which are based on the idea of the inferiority or the ” superiority of either of the sexes or on stereotyped roles for men and women. 37 In several European countries, including Belgium, Denmark, France, Italy and Norway, transgender people cannot obtain new documents reflecting their gender identity unless they . Depending on the nature of the surgical procedure undergo genital reassignment surgeries oving the individual’s performed, these procedures could also have the effect of rem reproductive ability. Although some transgender people would like to access certain health treatments with the aim of modifying their bodies, many others do not. For those who do, their choices in terms of the treatments they would like to access – whether hormone therapy, surgeries, genital reassignment surgeries, voice therapy, depilation and so on – greatly vary and depend on the personal feelings and perceptions shaping their gender identity. It is therefore problematic when a set course of medical treatment is required of all transgender people as a precondition to obtaining legal recognition of their gender. Luca, a transgender man from Norway, told Amnesty International: “ I want my legal gender to be male but I still have the f emale one. I can in theory obtain recognition of my gender but only if I am sterilized. This is out of question for me and it is not going to happen. After I had been taking hormones for a year the doctor told me that the next step would involve removing my ovaries and uterus. I told him I did not want that kind of surgery. I feel like I am deprived of my rights [ ] just because I choose to exercise some other rights legal gender recognition 38 [refuse medical treatments].” Requiring transgender people to undergo unnecessary medical treatments to obtain legal gender recognition violates their right to the highest attainable standard of health, which is 36 Interview with Charlie (pseudonym), 4 November 2013. 37 According to Italian legislation legal gender recognition is permitted only insofar as sexual characteristics have been adjusted through medico-surgical treatments that had been authorized in advance by the courts. Law of 14 April 1982, no. 164, Provisions concerning the rectification of sex attribution (Norme in material di -14;164 rettificazione di attribuzione di sesso), Article 3, http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1982-04 , in Italian, accessed 3 January 2013. 38 Interview with Luca, Oslo, 24 June 2013. Index: EUR O1/001/2014 Amnesty International January 2014

25 The state decides who I am 25 Lack of legal gender recognition for transgender people in Europe protected under international human rights law, including by the UN Covenant on Economic, Social and Cultural Rights (CESCR, Article 12). The Committee on Economic, Social and Cultural Rights, which monitors the implementation of the CESCR, has stated: “ The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s heal th and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest 39 attainable level of health. ” The Yogyakarta Principles require that: “ No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity. Notwithstanding any classifications to the contrary, a person’s sexual orientation and gender identity are not, in and of themselves, 40 medical conditions and are not to be treated, cured or suppressed. ” In many cases, genital reassignment surgeries result in as they involve the sterilization removal of either the testes, for people who are transitioning towards the female gender, or the uterus and ovaries, for those who are transitioning towards the male gender. But this goes further in some countries, where legal gender recognition is dependent on a sterilization requirement. Whether explicitly prescribed by law such as in Belgium, Denmark and Finland, or stemming from established practices such as in Norway or France, the sterilization requirement violates the right of transgender people to be free from inhuman, cruel or degrading treatment, which is protected under several international human rights instruments including the ICCPR (Article 7) and the UN Convention against Torture and Inhuman, Cruel or Degrading Treatment or Punishment (Article 16). This requirement results also in the impossibility for transgender people to found a family and thus violates their right to private and family life (See chapter 1.2). In 2013, the UN Special Rapporteur on torture and inhuman, cruel or degrading treatment or punishment stated: “ In many countries transgender persons are required to undergo often unwanted sterilization surgeries as a prerequisite to enjoy legal recognition of their preferred gender. In Europe, 29 States require sterilization procedures to recognize the legal gender of 41 . transgender persons.” The Rapporteur called upon states to put an end to these practices 39 General Comment 14: the right to the highest attainable standards of health, 11 August 2000, para8. 40 Principle 18: protection against medical abuse A/HRC/22/54, the Rapporteur recommends states put an end to involuntary sterilization stemming from genital reassignment surgeries transgender people have to 41 undergo if they want to obtain legal recognition of their gender, 1 February 2013, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53_English.pdf Amnesty International January 2014 Index: EUR 01/001/24

26 The state decides who I am 26 26 Lack of legal gender recognition for transgender people in Europe 1.3 THE RIGHT TO MAR RY AND TO FOUND A FAMILY AND THE RIGHT TO FAMILY LIFE 42 In countries such as Italy or Finland, legal gender recognition is contingent on changes in . This requirement discriminates against transgender individuals who are marital status married/in a civil partnership and wish to remain so, as they are bound to choose between their rights to marry and to found a family and to respect for private and family life, and their right to recognition before the law. The single status requirement was included in the General Scheme of the Gender Recognition Bill 2013, published by the Irish government in July 2013 (see Chapter 2.4.3.1). Patricia is a transgender woman married to Susan and living in Cork, Ireland. She said: “ It’s not up to other peo ple to evaluate my marriage, it should be my choice. The fact that other people, outside of our union, can decide that we should divorce, that our marriage should end or not... is a violation of our rights. We’re already married. I’m the same person I was wh en I got married. The only thing that’s changing is the gender marker on my birth 43 certificate.” The right to marry and to found a family is protected under international and regional human rights laws including the International Covenant on Civil and Political Rights (ICCPR, Article 23) and the European Convention on Human Rights (ECHR, Article 12). The right to respect for private and family life is protected by the ICCPR (Article 17) and the ECHR (Article 8). The European Court of Human Rights has clarified that the notion of private and family life equally applies to same-sex couples, irrespective of the legal regime applicable to them 44 under domestic jurisdiction. Moreover, the single status requirement does not comply with the Yogyakarta Principles, which state: “ No status, such as marriage or parenthood, may be invoked as such to prevent 45 the legal recognition of a person’s gender identity.” Some states argue that requiring transgender people to be single if they wish to obtain legal recognition of their legal gender stems from the prohibition on civil marriages between same- sex individuals in their jurisdictions. However, this aim, which is discriminatory in itself, cannot justify restricting the family and marriage rights of transgender people. States should in fact ensure the enjoyment of all human rights, including the right to marry and to found of 42 Law 164/1982, Article 4. Legal gender recognition automatically entails the cessation of marriage. 43 Interview with Susan and Patricia, Cork, Ireland, 24 October 2013. 44 For example the Court found in the case Schalk and Kopf v Austria that the reference to "men and women" in the ECHR no longer means that "the right to marry enshrined in Article 12 must in all c ircumstances be limited to marriage between two persons of the opposite sex." The court also stated: “[I]t is artificial to m aintain the view that, in contrast to a different-sex couple, a same- sex couple cannot enjoy ‘family life’ for the purposes of Article 8.” See, Schalk and Kopf v Austria, Application no. 30141/04, para94. 45 Yogyakarta Principles, “The application of international human rights law to sexual orientation and gender identity, Principl e 3(d): the right to equal recognition before http://www.yogyakartaprinciples.org/principles_en.htm the law”, Index: EUR O1/001/2014 Amnesty International January 2014

27 The state decides who I am 27 Lack of legal gender recognition for transgender people in Europe family, without discrimination, including on grounds of sexual orientation and gender identity. As the Commissioner for Human Rights of the Council of Europe has noted, courts in some states that do not recognise marriage between same-sex partners have nonetheless decided in favour of allowing marriages to continue when one partner has changed gender. Such rulings, the Commissioner notes, recognize that “protecting all individuals without exception from state-forced divorce has to be considered of higher importance than the very few instances in which this leads to same-sex marriages. This approach is to be welcomed as it ends forced 46 divorce for married c ouples in which one of the partners is transgender”. Because of the requirement of single status, people who are married or in a civil partnership and seek recognition of their preferred gender will face an invidious choice. They must either give up the legal protection acquired in their union, which is a violation of their right and the right of their partners and children to private and family life, or forego legal recognition of their preferred gender, a violation or their right to private life and to recognition before the law. 1.4 THE BEST INTERES T OF THE CHILD In some countries, age restrictions on legal gender recognition are prescribed by law (Finland, Portugal, Spain, Sweden , Netherlands) or result from current practices (Belgium, and the Denmark). Absolute denial of legal gender recognition to individuals under a given age is not consistent with existing international standards regarding the rights of children . Legal gender recognition should be accessible to children on the basis of their best interest and taking into account their evolving capacities. The UN Convention on the Rights of the Child (CRC) requires states to respect the right of children to be heard and to duly take into account their views. A key requirement of the CRC is that: “ in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best 47 The UN Committee on the Rights interests of the child shall be a primary consideration.” of the Child has highlighted that the identity of the child includes characteristics such as sexual orientation and gender identity, and that “ [...] the right of the child to preserve his or her identity is guaranteed by the Convention (Article 8) and must be respected and taken into 48 consideration in the assessment of the child’s best interests.” This is closely linked to the right of children to express their views freely and to have those 49 As the Committee on the Rights of the views taken into account in matters affecting them. Child has noted: “Assessment of a child’s best interests must include respect for the child’s 46 CommDH/IssuePaper(2009)2, Human Rights and Gender Identity, para. 3.2.2. 47 Convention on the Rights of the Child, Article 3.1. Committee on the Rights of the Child, General Comment 14: The right of the child to have his or her best interests taken as a primary consideration (Article 3, para. 48 1), para. 55, 2013. 49 Convention on the Rights of the Child, Article 12.1. Amnesty International January 2014 Index: EUR 01/001/24

28 The state decides who I am 28 28 Lack of legal gender recognition for transgender people in Europe right to express his or her views freely and due weight given to said views in all matters 50 affecting the child.” The right of children to express their own views regarding what is in their best interests is especially important in relation to older children, in light of their evolving capacities. As the ws must be Committee on the Rights of the Child has emphasized that “...the child’s vie given due weight, whenever the child is capable of forming her or his own views. In other words, as children acquire capacities, so they are entitled to an increasing level of 51 responsibility for the regulation of matters affecting them.” Transgender children and particularly adolescents who are unable to obtain legal recognition of their gender may face further discrimination and harassment, for instance at school where they cannot be enrolled in accordance with their gender identity. Andy, an 18-year-old transgender man living in Ireland, said: “For me [ legal gender recognition] is something to back me up... and make sure that teachers and the headmaster accept my gender and allow 52 me to use the [male] bathroom.” 1.5 INTERSEX PEOPLE Intersex indiv iduals possess genital, chromosomal or hormonal characteristics that do not correspond to the standard “male” or “female” categories of sexual or reproductive anatomy. of Sex There are several intersex conditions, which are all medically classified as “Disorders 53 Development” (DSD), a definition questioned by scholars and intersex activists because of 54 its stigmatizing connotation. A number of different human rights concerns arise for intersex people, many of which are outside the scope of this report. But in some cases there are intersections between legal gender recognition for transgender and intersex people. In many European countries, registering births is a legal requirement for parents, who usually have a short time period after the birth in which to do so. Information on the sex of newborn children, which is established by health professionals, is required at the registration. In cases where children are born with intersex conditions some countries extend the allowable 50 Committee on the Rights of the Child, General Comment 14, para. 43, 2013. 51 Committee on the Rights of the Child, General Comment 12, para. 85, 2009. 52 Interview with Andy, Dublin, 24 October 2013. 53 In 2006, a consortium composed of medical professionals, intersex individuals and parents of intersex children developed. Clinical Guidelines for the Management of Disorders of Sex Development in the Childhood: http://www.accordalliance.org/dsdguidelines/clinical.pdf 54 Some have suggested that intersex conditions termed “Variations of Sex Development”, M. Diamond and M. Beh, Variations of sex developments instead of disorders http://www.hawaii.edu/PCSS/biblio/articles/2005to2009/2006-variations.html of sex development, Index: EUR O1/001/2014 Amnesty International January 2014

29 The state decides who I am 29 Lack of legal gender recognition for transgender people in Europe 55 registration period, but in most European countries, children with intersex conditions are registered as male or female. In the majority of European states no specific procedures exist to allow intersex people to obtain legal recognition of their gender in instances where the sex they were assigned at birth does not correspond to their gender identity. In Germany, a new law, which came into force on 1 November 2013, requires that the information on sex in the population registry be omitted if a newborn child cannot be 56 This development sparked much debate, signed as either male or female. unambiguously as with intersex organizations raising the possibility that this provision may violate the privacy of 57 intersex people and expose them to further discrimination. In many countries, the process of assigning the gender of intersex babies at birth involves to make their surgeries bodies conform to standard notions of the male or the female sex. In 58 most cases, these surgeries are cosmetic rather than medically necessary. They may removal of gonads, which result in the sterilization of intersex people, and are include the often accompanied by hormone treatments. International and regional human rights bodies, including the United Nations Committee against Torture and the United Nations Special Rapporteur on torture and other cruel, inhuman or punishment have or degrading treatment criticized these medical procedures, which are not only unnecessary but also performed on 59 children too young to give their consent. 55 Not all intersex conditions are diagnosed at birth. 56 Personal Status Law (Personenstandgesetz/PStG), §22.3. 57 See the opinion of the Organisation Intersex International (OII) Germany, http://www.intersexualite.de/index.php/pm-mogelpackung-fur-inter-offener- geschlechtseintrag-keine-option/ , in German, accessed 12 December 2013. 58 For a review of these practices, including in Belgium, France and Germany, see D. C. Ghattas, “Human Rights between the sexes . A preliminary study on the life situations of inter* individuals”, Hei nrich Böll Foundation, 2013 http://www.boell.de/sites/default/files/endf_human_rights_between_the_sexes.pdf , accessed 12 December 2013. 59 CAT/C/DEU/CO/5, Committee against Torture, Concluding Observations on Germany, 12 December 2011, para. 20, http://www.institut-fuer- menschenrechte.de/fileadmin/user_upload/PDF-Dateien/Pakte_Konventionen/CAT/cat_state_report_germany_5_2009_cobs_2011_en.pdf ; A/HRC/22/54, UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 1 February 2013, para.77, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53_English.pdf . Non-medically necessary surgeries performed on intersex Council of Europe Parliamentary Assembly, Recommendation 2023 Children’s right to physical integrity, 2013 children have also been recently criticized by the (all accessed 12 December 2013). http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=20176&lang=EN Amnesty International January 2014 Index: EUR 01/001/24

30 The state decides who I am 30 30 Lack of legal gender recognition for transgender people in Europe 2. LEGAL GENDER RECOGNI TION IN ROPEAN COUNTRIES EU 2.1 DENMARK “ Legal gender recognition is extremely important because people only get one life and they need to live it as who they feel they are.” Joshua, a transgender man born in the United States of America and living in Denmark Transgender people in Denmark cannot obtain legal recognition of their gender unless they get a psychiatric diagnosis and undergo psychiatric assessment and medical treatments including hormone treatment, surgeries and irreversible sterilization. This process lasts for years and all those transgender people who are not deemed to have fulfilled the criteria of the psychiatric diagnosis, or who do not want to, or for health reasons cannot, undergo all the necessary medical treatments are excluded from obtaining documents that reflect their gender. Psychiatric diagnosis is also a mandatory requirement for transgender people who wish to change their name. Participants in the Copenhagen Pride 2012, © Søren Malmrose Index: EUR O1/001/2014 Amnesty International January 2014

31 The state decides who I am 31 Lack of legal gender recognition for transgender people in Europe 2.1.1 CURRENT LAWS AND PRACTICES Personal data of Danish citizens and residents are stored in the Civil Registration System 60 The data include information on the date of birth, the gender and the CPR ( det (CRS). ), which is a unique 10-digit number. The CPR number includes a Centrale Personregister gender marker among other information, such as the date of birth. The last digit of the CPR is always odd for those individuals who were assigned the male sex at birth and even for those who were assigned the female sex. Personal Number Certificates ( ) are issued on the basis of the information registered in the CRS. The er personnummerbevis information included in the CPR number is needed to obtain other official documents, including passports, and to access a wide variety of goods and services such as health care, opening bank accounts, using public libraries or buying properties. The Ministry for Economic Affairs and the Interior is ultimately responsible for allocating new CPR numbers to transgender individuals, provided that the Danish Health and Medicines Authority ( Sundhedsstyrelsen, hereafter the Health Authority), an entity under the Ministry of Health that sets up standards for the treatment of transgender people, certifies that the 61 person’s gender reassignment is completed. According to Danish law and practices, such a process is not over until the transgender person has undergone sterilization, which requires a long period of psychiatric diagnosis and supervision. Transgender people cannot obtain legal gender recognition until they undergo all the required phases. Once genital reassignment surgeries and sterilization have been performed, the Health Authority authorizes the legal gender recognition and informs the Civil Registration System, which issues a new CPR number. At this stage, transgender people who had already changed their name can obtain new documents, including passport and driving licence, indicating their new legal gender. Generally, names in Denmark should reflect the sex assigned at birth. Transgender people can obtain a name that corresponds to their gender identity before having completed the full process aimed at obtaining legal gender recognition, providing that the Sexology Clinic at the Rigshospitalet, hereafter the Sexology Clinic ) Copenhagen University Hospital ( considers 62 them to b e “transsexuals” or to be experiencing a similar condition. Similarly, transgender people who are diagnosed as “transsexual” but who have not yet completed the reassignment process with the Sexology Clinic, can obtain a passport where neither the male nor the 63 Bjørk, a female gender is indicated but where the gender case is filled with the letter X. 60 The CRS was put in place in 1968, mainly for the purpose of collecting taxes. See: Danish Act on the Civil Registration System, act no. 426 of 31 May 2000, http://unstats.un.org/unsd/vitalstatkb/KnowledgebaseArticle50040.aspx , accessed 2 December 2013. 61 Guidelines on Population Registration ( Vejledning om folkeregistrering ) no. 9273 of 14 June 2013, para. 2.1.3, https://www.retsinformation.dk/Forms/R0710.aspx?id=152201#Bil2 , in Danish, accessed 2 December 2013. 62 Act on Names, § 13.2, http://www.familiestyrelsen.dk/fileadmin/user_upload/Engelsksprogede_filer/The_Danish_Act_on_Names.pdf , accessed 4 December 2013; Regulation on Names, No. 1324 of 27 November 2013. Guidelines on Passports (Bekendtgørelse om pas m.v.) no. 1337 of 28 November 2013, §5, https://www.retsinformation.dk/Forms/R0710.aspx?id=159226 , in 63 Amnesty International January 2014 Index: EUR 01/001/24

32 The state decides who I am 32 32 Lack of legal gender recognition for transgender people in Europe transgender woman, was told by the Clinic that she had to wait two years before getting a passport indicating a neutral gender. In the end, the Clinic did not support her request to have a gender-neutral passport, on the basis that she was not living as a woman full-time. According to Bjørk, this conclusion was based on one occasion when the Clinic tried to reach her on an old number that was not in use anymore and listened to the message on the answering machine that Bjørk had recorded by using her old male name. Bjørk filed a , which is tasked with providing complaint with the Medico-Legal Council ( Retslægerådet) 64 advice to authorities on medical-related issues. The complaint was rejected in March 65 2013. 2.1.2 MEDICAL REQUIREMENTS: THE PSYCHIATRIC DIAGNOSIS The Sexology Clinic is the only facility in Denmark where transgender people can access the specific transgender health care officially required for legal recognition of their gender. The main rationale for this is the highly specialized nature of transgender health treatments, according to spokespersons for the Clinic and the Health Authority in interviews with Amnesty International. The Clinic is also in charge of establishing the psychiatric diagnosis for transgender s, such as hormone treatment individuals, which is a prerequisite to access specific treatment or surgeries. The team dealing with transgender individuals within the Clinic is composed of psychiatrists, psychologists and other doctors such as gynaecologists and plastic surgeons. The Danish Classification of Diseases is based on the World Health Organization’s 66 International Classification of Diseases (ICD-10). The psychiatric diagnosis of transgender identities undertaken by the Sexology Clinic is thus based on the ICD-10. The diagnosis is necessary to access the health treatments that are required to obtain legal gender recognition. According to the practices followed by the Sexology Clinic, only the diagnosis of “transsexualism” (ICD10, F64.0) paves the way to accessing hormone treatments, surgeries and eventually genital reassignment surgery and sterilization, which are compulsory requirements to obtain legal gender recognition. The issue of psychiatric diagnosis is a contentious one. Many of the transgender people and organizations Amnesty International spoke to in Denmark and elsewhere vocally oppose the fact that transgender identities are treated as mental diseases that require a psychiatric rity told Amnesty International “ A transgender diagnosis. On the other hand, the Health Autho person does not have to be ill in order to be offered treatment by the Health Care System. However, thorough examination is a precondition for delivering treatmen t. The result of such examination constitutes the diagnosis, which is crucial to identify the most appropriate Danish, accessed 4 December 2013. 64 Guidelines on Passports, §6. 65 Interview with Bjørk, 23 October 2013. 66 See Appendix II for more information on these categories. Index: EUR O1/001/2014 Amnesty International January 2014

33 The state decides who I am 33 Lack of legal gender recognition for transgender people in Europe treatment. Normally, it is dangerous and irresponsible to treat people without the diagnostic 67 examination. Diagnoses are therefore a necessary medical tool ” . Independent health professionals operating outside the Sexology Clinic told Amnesty International they think the current medical practices stem from the idea that transgender people are mentally ill and being transgender is thus their experiences and feelings can not be trusted. They said that “ not a psychiatric disease, it’s just a variation of normality and normality is a broad concept, 68 ”. According to representatives of the Sexology Clinic, the psychiatric with many nuances diagnosis is not necessarily a stigmatizing practice. Anna Marie Giraldi, the Clinic Deputy I don’t think that being transgender is a psychiatric disorder. However, the Head, said “ psychiatric diagnosis can help in identifying many factors and conditions that are 69 problematic, including those who bear psychological consequences or need to be treated ”. Especially given the reservations of many transgender people regarding psychiatric diagnosis, it is important that it not be required for legal gender recognition, a process which is not medical in itself. Transgender people whom Amnesty International spoke to generally agree that medical supervision is necessary when accessing hormone treatment or surgeries. They would also be in favour of getting some psychological support; for some of them it proves indeed difficult to acknowledge their gender identity, especially in contexts where social pressure and stigma play an important role. However, many do not consider the Clinic’s practices with regard to psychiatric diagnosis to be appropriate or supportive. Transgender people reported feeling ill at ease in sessions with mental health professionals at the Clinic. Bjørk said, “ I went to the Clinic because I wanted to understand my feelings better. I didn’t know whether I wanted the full gender change, but I did want some treatments to appear more feminine. I felt I had to prove myself to them; that the burden of the proof was on me. I had four sessions with the psychologist. She asked about my sexual relations. I told her I had som e with men... and she insisted I was homosexual and that those were homosexual relations... but that is not the way I perceived them... She said they could not help me 70 because of [the ‘homosexual relations’]. That was my last visit to the Clinic. ” Hanne, a psychologist who provides support to transgender people outside the Sexology Clinic also expressed some rese rvations on the diagnostic practices followed by the Clinic: “ It is not on the basis of sexuality that you can say whether a person is transgender or not because transgender people, as much as everyone else, live their sexuality in many different 71 ways, it’s not possible to make generalizations on that. ” Furthermore, psychiatric diagnosis contributes to making the procedure aimed at obtaining legal gender recognition lengthy. In the summer of 2013 the Clinic established a new practice and timetable for making a diagnosis – eight sessions with mental health 67 Interview with Dr. Marianne Jespersen, Danish Health Authority, 15 November 2013. 68 Interview with Hanne Pedersen, Michael Lützhøft Hansen and Peter Bagger, 15 November 2013. 69 Interview with Anna Marie Giraldi 70 Ib. 65 71 Interview with Hanne Pedersen , 15 November 2013. Amnesty International January 2014 Index: EUR 01/001/24

34 The state decides who I am 34 34 Lack of legal gender recognition for transgender people in Europe professionals to be distributed in a period of eight weeks. If a diagnosis cannot be established in that timeframe, the guidelines stipulate further consultation for a period that should not exceed one year. Prior to these new rules, the Clinic had no specific guidelines on the timeframe for establishing the psychiatric diagnosis. The waiting time to get the first appointment with the Clinic is currently around two months. After the first appointment, it takes another three months to start the diagnostic period. The number of sessions necessary to establish the psychiatric diagnosis varies on a case-by-case basis. The diagnostic process followed by the Sexology Clinic also requires one session where relatives, preferably parents, are invited over and asked questions about the private and intimate life of the transgender person who is under scrutiny. This session seeks to assess whether the person’s gender identity has been constant over time. Daniel, a transgender man told Amnesty International, “ I was not allowed to say anything during the session with my parents. They asked my mum a lot of questions about my birth, whether the re were complications, if I played with boys or girls in the kindergarten, if I played with dolls, what clothes I wanted to wear and also about my intimate partners later on. My parents felt they .” were being interrogated and they were nervous they might say something wrong Transgender people who obtained another diagnosis, under the classification of “other gender identity disorders” (ICD10, F64.8) for example, do not have access to health treatments and ultimately are excluded from the possibility of seeking legal recognition of their gender, unless they undergo surgeries abroad and at their own expenses. Pippin is a transgender man who was not diagnosed with “transsexualism” by the Sexology Clinic. He told Amnesty Internationa l, “ I went to the Clinic for a year and a half. The first year I had an appointment with a psychiatrist once a month. Then I had to undergo psychological tests and a discussion session with my parents. They concluded they could not offer me treatment because my gender identity was not certain and it was something I had come up with to bolster myself. They obviously think they know better who you are...you have 72 ” to be declared mentally ill in order to be who you are. Christina is a 48-year old trans woman. She told Amnesty International that she attended 32 sessions with mental health professionals at the Clinic for almost two and a half years. Eventually the Clinic rejected a diagnosis of “transsexualism”. According to the written assessment Christina received from the Clinic, she was a transvestite and did not qualify for 73 gender reassignment treatments. As a consequence, she will not be able to obtain legal recognition of her gender. 2.1.3 HORMONE TREATMENTS AND SURGERIES According to the Sexology Clinic, 120 transgender people were referred to the Clinic in 2011 72 Interview with Pippin, 24 October 2013. 73 Interview with Christina (pseudonym), 13 December 2013. Index: EUR O1/001/2014 Amnesty International January 2014

35 The state decides who I am 35 Lack of legal gender recognition for transgender people in Europe and this number increased to 160 in 2012. There are no statistics on how many transgender people are diagnosed with “transsexualism” or any other gender identity related “disorder” each year. What is certain is that all those individuals who identify themselves as transgender and who would like to seek legal recognition of their gender but are not diagnosed with “transsexualism” by the Clinic will not be able to obtain new documents reflecting their gender because they do not have access to the health treatments that are compulsory for the purpose of obtaining legal gender recognition. Transgender individuals who are diagnosed with “transsexualism” are referred to hormone treatment straight after the diagnosis. After one year of hormone treatment, under which transgender people are closely supervised, a final decision is taken by the Clinic on whether a full reassignment operation, involving sterilization, should be performed. Some transgender people do not want to follow the process put in place by the Sexology Clinic and decide to access health treatment from other health professionals. According to some of these health professionals, in interviews with Amnesty International, more 74 transgender people access health care through them than through the Sexology Clinic. Niels, a 40-year old transgender man, refused to follow the process with the Sexology Clinic, opting instead to access hormone treatments via health professionals in the private sector and to undergo reassignment surgeries abroad, which are not state-funded. He told Amnesty International, “[The Sexology Clinic] should not be able to exercise power over my life; the we feel bad before choice should not be in their hands... They think we are all mentally ill. If treatment, it’s not because we have a disorder... [It is because] living in the wrong body is difficult.” Niels, who used to suffer from severe depression before initiating his transition, explained why hormone treatment is important for h im . “I felt better immediately after taking my first dose of testosterone... For some transgender people hormone treatment is critical to 75 their mental well-being, and it should be accessible just on the basis of informed consent ” . Michael is a gynaecologist who provides health care to transgender people independent of the Clinic. He explained why : “We take them because they do not have anywhere else to go and we know they are desperate. Being transgender is not a psychiatric disease, but often transgender people have psychological problems because for years they have experienced a situation in which they felt something was wrong... The most important thing is that they understand exactly what each health treatment entails. Their informed consent should be the 76 .” only key element to be taken into account in access to specific health care The Health Authority, acting as the supervisor of the health system, instructed these health professionals to hand in all the medical files of the transgender people that they were treating as there were concerns about transgender health care being provided outside the system established by the Sexology Clinic. This caused a lot of anxiety among those transgender people, including Niels, who access hormone treatment via these health professionals. The 74 Ib. 68 75 Interview with Niels, 21 October 2013. 76 Ib. 68 Amnesty International January 2014 Index: EUR 01/001/24

36 The state decides who I am 36 36 Lack of legal gender recognition for transgender people in Europe Health Authority decided eventually to allow them to continue treating the transgender individuals who were already under their supervision but reached the conclusion that they must not treat any new patients . 2.1.4 STERILIZATION Danish legislation lays out the instances in which sterilization, a process entailing the surgical removal of the sexual and reproductive organs (ovaries, uterus, penis and testes), is allowed. According to the 2010 Health Act, a person can be sterilized in order to “change sex” if the sex assigned at birth causes considerable mental suffering or social deterioration. Only individuals who are 21 years or older can be sterilized. In practice, this excludes all 77 transgender people who are under 21 from legal gender recognition. Further administrative guidelines spell out the procedure. Requests for sterilization in relation to a “sex change” should be submitted to the Health Authority, which is the body 78 tasked by the Ministry of Interior and Health to authorize such requests. In practice, sterilization is carried out in conjunction with genital reassignment surgeries. One of the requirements of the Health Authority to authorize sterilization, besides the of at least two years under the diagnosis of “transsexualism”, is an “observation period” 79 This means that transgender people who are treated by health professionals Sexology Clinic. or structures in the private sector cannot be sterilized and are unable to seek legal 80 recognition of their gender, unless they undergo reassignment surgeries abroad. Gender reassignment surgeries performed abroad can be recognised in Denmark for the purposes of legal gender recognition only insofar as several conditions are fulfilled. In particular, transgender women who were born as male have to undergo castration (removal of test es and the penis) and vaginoplasty. Transgender men who were born female must have Individuals whose sex drive may lead to the perpetration of crimes may equally be sterilized. In any case, sterilization has to be authorized by the Ministry of Interior 77 and Health. Danish law refers to “Kastration” as covering irreversible sterilization of both women and men. In this report, “Kastration” is translated as “sterilization” because it is not a gender-neutral term in English and refers only to the removal of testicles. Health Act (Sundhedsloven), no. 913 of 13 July 2010, §115, sub-sections 1 and 2, https://www.retsinformation.dk/Forms/R0710.aspx?id=130455 , in Danish, accessed 4 December 2013. 78 Decree on Sterilization and Castration including for sex change (Bekendtgørelse om sterilisation og kastration, herunder med henblik på kønsskifte), no. 14 of 10 January 2006, §5, https://www.retsinformation.dk/Forms/R0710.aspx?id=10133 , in Danish, accessed 4 December 2013. 79 Guidelines on castration in relation to a sex change (Vejledning om kastration med henblik på kønsskifte), no. 10077 of 27 November 2006, §2 and §3, https://www.retsinformation.dk/Forms/R0710.aspx?id=11017 , in Danish, accessed 4 December 2013. According to available statistics two transgender women and 11 transgender men were allowed to undergo sterilization in Denmark from 1 January 2012 to 23 80 September 2013. In the same period 12 transgender women and one transgender man had surgery abroad. http://www.ft.dk/samling/20121/almdel/suu/spm/858/svar/1082361/index.htm Amnesty International January 2014 Index: EUR O1/001/2014

37 The state decides who I am 37 Lack of legal gender recognition for transgender people in Europe 81 their uterus and ovaries removed. 2.1.5 CONSEQUENCES OF CURRENT LAW AND PRACTICES e specific diagnosis of “transsexualism” cannot seek Transgender people who do not obtain th legal gender recognition. They also cannot access any state-covered transgender health treatment in Denmark. The only option open to them is to undergo surgeries abroad and to seek legal gender recogniti on once back in Denmark. Those transgender people who do not want to undergo genital reassignment surgeries and sterilization cannot seek legal gender recognition at all. They cannot obtain legal documents matching their gender identity and may be subject to a wide range of experiences where their rights to privacy and to be free from discrimination are violated. Joshua is a transgender man born in the United States. He moved to Denmark to reuni te with his current wife, who is Danish. He has three children from a previous marriage in the US. Joshua is caught in a legal limbo. While he is legally a man in the US and has a US passport, he is still a female in Denmark and has a CPR number that indicates the female gender. Danish authorities do not recognize his male gender because he has not undergone sterilization. This situation causes a great deal of stress for both Joshua and his wife. It also leads to social exclusion and discrimination. I try to avoid Joshua said, “ people in Denmark, being stuck between two identities is a major obstacle for me. You don’t want to go to your kids’ school and out yourself all the time. I am still listed in the school system as their mum. The other kids in the school ask about it because they can see the [female] name [yet I have a male appearance]. It’s very awkward for me and my kids. ” Joshua Andreas Bryan © Private 81 Guidelines on castration, §4. Amnesty International January 2014 Index: EUR 01/001/24

38 The state decides who I am 38 38 Lack of legal gender recognition for transgender people in Europe This situation creates problems in Joshua’s everyday life. “ It’s difficult when you go to the doctor and to the bank. I often take my wife with me to the doctor just in case they call up the wrong name [Joshua’s former female name]... If you don’t have your gender identity legally recognized, you always have to explain; ‘I used to be so and so but now I am so and so’. You have to out yourself all the time and sometimes it makes you feel afraid; [I am yet] to get my driving licence in Denmark due to that fear... and I used to love driving in America.” Joshua explained why he does not want to undergo the existing process to obtain legal gender recognition in Denmark. Apart from objecting to the sterilization requirement, he does not think the practices of the Sexology Clinic are appropriate and more fundamentally he does not think that transgender identities should be considered as mental diseases. “ Sterilization is a major surgery and seems unnecessary when no one can really see what’s inside me. The idea that trans people should not have kids is an insult to my three kids because I wouldn’t have them if I’d grown up here and followed the rules [about legal gender recognition ]... The mental diagnosis is completely demeaning and gives you a big dose of low self-esteem. I went to the Sexology Clinic three times. I hated their questions. They were overly fascinated by the fact that I have three kids and that I used to be married to a guy. They focused only on my sexual life and asked questions like, ‘Did it excite you having sex with Mark [Joshua’s former husband]?’ Finally I had enough and I left.” The lack of legal gender recognitio n can further expose transgender people to discrimination crimes, which remain widespread in Denmark. According to the FRA -LGBT survey, and hate 44 per cent of the transgender individuals surveyed in Denmark felt they had been discriminated against or harassed during the 12 months prior to the survey. Twenty -one per of those surveyed felt discriminated against by health professionals and educational cent staff and 25 per cent perceived having been discriminated against at work. Danish civil law 82 does not provide explicit protection against discrimination on grounds of gend er identity. The same FRA-LGBT survey found that 34 per cent of the transgender individuals surveyed experienced physical violence or were threatened with violence in the five years prior to the survey and 44 per cent thought the last incident of violence they had experienced was motivated by their gender identity. The transphobic motive behind the perpetration of a hate 83 crime can be investigated, prosecuted and taken into account in the sentencing phase. 82 Discrimination on the ground of gender is prohibited in employment and other areas of life by the (Consolidated) Act on Equality between Women and Men (No.1527, 2004), Act on Equal Pay for Women and Men (No.906, 2006), Equal Treatment Act (No. 734, 2006) and Consolidated Act of equal treatment for men and women in occupational social security schemes (No. 134 No. 1998). Discrimination on the ground of sexual orientation is prohibited only in the area of employment in the Act on the Prohibition of Discrimination in the Labour market No. 1349, 2008. See: http://www.ligebehandlingsnaevnet.dk/artikler/default.aspx?page=1166 , in Danish, accessed 16 December 2013. The Danish Criminal Code includes a provision according to which the punishment can be enhanced if a crime is perpetrated on the grounds of ethnic origin, 83 religion or belief, sexual orientation or other grounds, Criminal Code (Straffelove) no. 1028 of 22 August 2013, §81.6, https://www.retsinformation.dk/Forms/R0710.aspx?id=152827 ,in Danish, accessed 4 December 2013. In October 2013 the Copenhagen City Court applied the existing Index: EUR O1/001/2014 Amnesty International January 2014

39 The state decides who I am 39 Lack of legal gender recognition for transgender people in Europe ES 2.1.6 OPPORTUNITIES FOR CHANGING LAWS AND PRACTIC Denmark violates the rights of transgender people to the highest attainable standard of health and to be free from inhuman, cruel and degrading treatments by requiring them to undergo unnecessary medical treatments such as surgeries and sterilization in order to obtain legal recognition of their gender. The extensive length of time required for transgender people to complete the process to obtain documents that reflect their gender identity, and the exclusion from that process of transgender people who are not diagnosed with “transsexualism” violates their rights to private and family life and to recognition before the law. Psychiatric diagnosis is stigmatizing and should not be a precondition for accessing . According to many of the transgender people health treatments and legal gender recognition Amnesty International interviewed, the psychiatric assessment is often undertaken on the basis of gender stereotypes, which Danish authorities should counteract. The Health Authority informed Amnesty International that a working group chaired by the Minister of Justice is assessing the current laws and practices on legal gender recognition and is tasked to develop recommendations. According to a November 2012 statement, the Health Authority is reviewing practices on transgender health care, including consideration of making treatments accessible to minors. Recommendations by the working group on legal gender change as well as guidelines regarding future transgender health care were still to be published at time of completing this report. provisions on hate crime when judging a man who had assaulted a transgender woman with a hammer, although gender identity is not an explicitly mentioned ground in hate crime legislation. Amnesty International January 2014 Index: EUR 01/001/24

40 The state decides who I am 40 40 Lack of legal gender recognition for transgender people in Europe 2.2 FINLAND “I find it offensive to have [gender] markers on my documents and in registers that are not true. This puts me in a situation whereby I must constantly be prepared to answer questions. My name is Juudas, I feel like [a man] but my documents say F-female. One big thing about gender recognition is safety. But also the fact that I want to be who I truly am in the eyes of society.” Juudas, a 20 year-old transgender man living in Tampere and in the process of obtaining legal gender recognition Transgender people in Finland have to undergo a cumbersome process in order to obtain legal recognition of their gender. They cannot change the gender markers on their documents unless they receive a psychiatric diagnosis and undergo psychiatric assessment, medical nd treatments including sterilization a a “real life test”. The procedure can last for years and it excludes all transgender people who do not receive, or chose not to receive, a specific diagnosis and those who do not want to, or cannot for health reasons, undergo all the required medical treatments. Transgender people can rarely change their name to a differently gendered name unless they get a psychiatric diagnosis. CURRENT POLIC 2.2.1. IES AND PRACTICES In Finland, all the personal information relating to citizens and residents is registered in the Population Information System, an electronic database maintained by the Population 84 Registration Centre. This information includes the gender and personal identity code. The latter refers to the sex assigned at birth and its last digit is always even for females and odd for males. All personal documents, including passport and identity cards, are issued on the basis of the information stored in the Population Information System. 85 According to the Act on Legal Recognition of the Gender of Transsexuals (hereafter the Trans Act), in force since 2002, the reference to the sex assigned at birth in the Population Information System can be changed only if the applicant presents a medical statement certifying that she or he wishes to belong permanently to the opposite gender, lives in that gender role and has been sterilized or is “for some other reason infertile”. The Act also restricts the possibility to access legal gender recognition to individuals who are single and of age. However, the single status requirement is not applied if the spouse gives his or her consent to legal gender recognition. In this case an existing marriage is converted into a registered partnership and vice-versa. Further details on the requirements for accessing legal gender recognition are spelled out in a 86 In particular, the Decree Decree issued by the Ministry of Social Affairs and Health. 84 See, the Population Information Act (507/1993), http://www.finlex.fi/fi/laki/ajantasa/2009/20090661 , in Finnish, accessed 7 November 2013 . 85 Act No. 563/2002, Section 1. The Act also requires the applicant to be either a Finnish citizen or a resident in Finland. Unofficial English translation: http://www.finlex.fi/en/laki/kaannokset/2002/en20020563 , accessed 11 November 2012. 86 Ministry of Social Affairs and Health Decree 1053/2002 on the organization of the examination and treatment aimed at changing gender, as well as on the medical statement for confirmation of the gender of a transsexual. Unofficial English translation: www.trasek.net/wp- Index: EUR O1/001/2014 Amnesty International January 2014

41 The state decides who I am 41 Lack of legal gender recognition for transgender people in Europe specifies that the medical statement required by the Trans Act for the purpose of legal gender recognition should verify that all the medical criteria are fulfilled. The Decree also provides a framework regulating access to transgender health care and psychiatric assessment . Every transgender person seeking treatment should be referred to one or other of the multidisciplinary teams established at the Helsinki University Central Hospital and the Tampere University Central Hospital. According to the Ombudsman for Equality, general practitioners sometimes refer transgender people to mental health units in other hospitals, by the Decree. Both of the official teams are led by although this is against the rules outlined a psychiatrist and composed of experts in gynaecology, endocrinologists and, in the case of Helsinki, plastic surgery. Transgender individuals wishing to legally change their gender must obtain a statement from both the heads of the specialist teams in Helsinki and Tampere. The Names Act is interpreted as if it prohibits bearing a name that does not correspond to 87 one’s legal gender. As a consequence, transgender individuals can usually change their name only after receiving a psychiatrist diagnosis. The diagnosis may not be required in a few cases where applicants wish to change their name to one that is considered to be gender neutral. However, name change practices, including the interpretation of which names are gender neutral, greatly vary across the registration offices that are in charge of dealing with applications. 2.2.2. MEDICAL REQUIREMENTS: THE PSYCHIATRIC DIAGNOSIS Psychiatric diagnosis is required to access specific transgender health care, including . The hormone treatment, which is in turn necessary to obtain legal gender recognition diagnostic period at the Trans Units of Helsinki and Tampere U niversity Hospitals takes at least six months and can take up to 12 months depending on the individual situation and the Many transgender individuals perceive the need to receive a availability of human resources. 88 psychiatrist diagnosis as stigmatizing. N. is a 39-year-old women with a transgender past. She is married to a woman and has two children. She realized she was transgender at the age of 26, although she had always felt uncomfortable with the male gender she was brought up with. A general practitioner referred her to the multidisciplinary unit in Tampere in March 2012, and she was finally diagnosed She shared her frustration with this long process in an with “transsexualism” in April 2013 . interview with Amnesty International. trying to convince other people that “I spent over a year content/uploads/2011/03/TransDecree2003.pdf , accessed 11 November 2013. Formally, the Names Act only prohibits giving a child a name that does not correspond to the legal gender. Names Act 9.8.1985/694, Section 32b 87 88 The diagnostic period refers to the period elapsing from the first meeting at one of the two Trans Units to the moment where the psychiatric diagnosis is established. In summer 2013, the Helsinki Trans Unit created a diagram of the entire process from referral through legal gender recognition. The process is explained to all transgender people referred to the Unit on their first appointment. It includes: i) the diagnostic period (minimum of six mon ths); ii) “real life test” (minimum 12 months) in which the transgender person lives according to the preferred gender identity, a requirement of the Trans Act and its implementation Decree, and includes the other life test”; iv) second opinion from hormone treatment, possibly mastectomy, voice therapy, epilation, and possibly other treatments; iii) evaluation of the “real Trans Unit; v) legal gender recognition and genital surgery. Interview with Hanna Hintsala, Helsinki Unit, 5 November 2013 Amnesty International January 2014 Index: EUR 01/001/24

42 The state decides who I am 42 42 Lack of legal gender recognition for transgender people in Europe -determination. I see I am really a woman. It is a humiliating process, a breach of one’s self that as absurd. No one else has to constantly convince others of who they are. It is derogatory and stigmatizing that the issue is treated as a psychiatric one; for instance, I had to explain 89 to my employer that I did not have mental health issues.” Furthermore, many trans individuals told Amnesty International that they felt they had to conform to stereotypical gender norms in order to be perceived as trans by health professionals during and after the diagnostic process. Juudas, a 20-year-old transgender man living in Tampere who is in the process of obtaining legal gender recognition, told Amnesty International: “You suffer all the time from the normativity that surrounds the process. I started my process in Helsinki. I went there thinking I would finally get help and the suffering would end soon. I was new there and one of the first things they told me was that I have a ‘feminine hairstyle’. You are constantly being reviewed on the basis of how ‘girly’ or ‘manly’ 90 you are. [That is how] these ‘qualified’ people, decide your gender.” a Tainio and Juudas Kannisto, two young transgender men from Finland, © Amnesty International Luc Interview with N., 16 July 2013. 89 90 Interview with Judaas, 5 July 2013. Index: EUR O1/001/2014 Amnesty International January 2014

43 The state decides who I am 43 Lack of legal gender recognition for transgender people in Europe Members of the Trans Units told Amnesty International that they are very well informed abou t gender diversity and do not expect people to conform to stereotypical gender roles in order to needed diagnosis. However, pressure is imposed by the fact that the diagnosis of obtain the “transsexualism” -10, F64.0) is the only one that enables acces s health treatments and (ICD ultimately legal gender recognition. Trans people who do not identify according to the binary - male female divide are not diagnosed with “transsexualism” but with “other gender 91 92 which excludes them from accessing legal r ecognition of their gender. The disorders” , Trans Act and its implementation Decree are interpreted as being applicable only to those transgender people who are diagnosed with “transsexualism”. K. I. is a transgender person who is legally a female and identifies as gender queer. Amnesty International interviewed him when he was in the process of being diagnosed by the Helsinki University Central Hospital. He felt pressured to fit into the gender stereotyping inherent in the diagnostic system . “ You need to be careful t hat what you say fits the image they are looking for. I cannot say that I am gender queer, closer to the male end of the spectrum, because then they would diagnose me as gender queer and I wouldn’t be able to get the hat treatment you need, they put you in a box and treatments I need. They don’t look at w that box determines which treatments are allowed. There is no room for dialogue on experience and personal needs. Gender queer people are not legally recognised so... I have es sound more stereotypical just in case, which is very had to make my childhood experienc distressing and creates uncertainty over your own identity and your perception of it. I get a 93 feeling of not being in the right place, as I am not accepted as I am”. 2.2.3 OTHER MEDICAL REQUIREMENTS: HORMONE TREATMENT AND STERILIZATION Once the diagnosis of “transsexualism” is established, transgender individuals can access a “real life test” in which they have to live hormone treatment. This is usually part of according to their gender identity for the period of a year, as required by the Trans Act and its 94 implementation Decree, to obtain legal gender recognition. The sterilization requirement is one of the most problematic issues for many transgender people. A 21-year old gender queer person told Am The sterilization nesty International, “ requirement is a big question for me personally. I would like to have my gender legally 91 F 64.8: other gender identity disorders; F 64.9: gender identity disorders, unspecified, of the International Classification of Diseases (ICD-10). See Annex II for more information on these categories. 92 Such diagnosis excludes trans people from accessing state funded genital surgery and in some cases other state funded treatments because the Decree 1053/2002 refers only to “transsexualism”. The treatments accessible to trans people who are not diagnosed with “transsexualism” depend on the practices followed by the Trans Units. In early 2013 the Helsinki Trans Unit decided mastectomies would no longer be accessible to trans people diagnosed with “other gender disorders”. Even if the diagnosis can be changed to “transsexualism” at a later stage, making tr eatments dependent on the specific diagnostic clas sification and not on one’s individual personal situation and wishes is problematic. 93 Interview with K. I., 18 July 2013. 94 Section 1.1 of the Trans Act and §6 of Decree 1053/2002. Amnesty International January 2014 Index: EUR 01/001/24

44 The state decides who I am 44 44 Lack of legal gender recognition for transgender people in Europe sure I can trick [the health professionals] in the examinations to recognized but I am not believe that I would never want biolo gical children.” Another young person said, “ Above all, the sterilization requirement is the most heinous. I do not want to be forced to decide at the age of 24 whether I want to have biological children. ” The sterilization requirement implies that trans people may have to undergo medical treatments against their wishes and with the sole purpose of obtaining legal gender recognition. K. I. shared with Amnesty International how he felt coerced into undergoing hormonal treatments in order to obtain legal gender recognition: “I think my body image fits even without hormonal treatment, but hormones are compulsory for me if I wish to have my male gender recognized. The legal gender is crucial in your everyday life; it is marked on your travel card, you need it when you see your doctor, when you apply for education. The thought of my identity number outing me in front of other 95 people is distressing.” Health professionals at both the Helsinki and the Tampere Hospitals told Amnesty s sterilization requirement is in practice achieved via International that the Trans Act’ 96 hormone treatment. 2.2.4 OTHER REQUIREMENTS: CHANGE IN MARITAL STATUS The single status requirement established by the Trans Act does not in practice require that a person literally be single. However, provided that the partner or the spouse of the transgender person seeking legal gender recognition gives the consent, a civil partnership may be transformed into marriage and vice-versa. This has the effect of making legal gender 97 recognition conditional on what marital status the applicant has. Heli is a 49-year- old transgender woman. In 2006 she was diagnosed with “transsexualism” by the University Hospital of Helsinki, a diagnosis confirmed by the University Hospital of Tampere. She has undergone all the phases required by law to obtain legal gender recognition. However, she cannot change her gender because she is married and she does not want to convert her marriage into a civil partnership, as this would be contrary to her religious beliefs and a violation of her and her spouse’s . “I would be right to private and family life satisfied to have, in addition of my name, a passport with gender markers that reflect my Interview with K.I., 18 July 2013. 95 96 Interview with Hanna Hintsala, Helsinki Unit, 5 November 2013 and Interview with Aino Mattila, Tampere Unit 22 October 2013. The two teams follow different practices in this respect; the Tampere team considers sterilization completed after six months of hormone treatment, while the Helsinki team requires 12-months of treatment Under Finnish law, marriage is exclusive to different sex partners (Section 1.1, Marriage Act, 234/1929) and civil partnerships are restricted to same sex partners 97 (Section 1, Act of Civil Partnerships, 950/2001). The rights protected by the two regimes differ, in particular with regard to adoption and parental rights. For instance, civil partners cannot jointly adopt children; one of the partners has to adopt as a single-person and the other partner can subsequently adopt the child through second- parent adoption. Moreover, if one of the partners gives birth to a child, the other partner is not automatically considered as the other legal parent unless the child is adopted through second-parent adoption. Index: EUR O1/001/2014 Amnesty International January 2014

45 The state decides who I am 45 Lack of legal gender recognition for transgender people in Europe gender. I currently do not fulfil the expectations created by my passport, for instance at airport security checks. I only wish my identity number did not out me. In my view, this number should correspond with my name that I have changed. Gendered identity-numbers lead to many unpleasant situations. For example once a ticket inspector claimed I was travelling with someone else’s ticket or that I had taken my spouse’s ticket by mistake [as the ticket showed the gendered identification number]” Heli considered the requirement to convert her marriage into a civil partnership as the most The biggest issue is them requiring problematic one. She told Amnesty International : “ changes in my personal life, in things that have to do with my privacy, to treat a medical s little condition. I am surprised they don’t require a ban on owning land, which would make a sense [as the single status requirement]. The justification is that morals, everyone else’s rights and everything else would collapse. However, I did not change, I was not reborn as a woman and I am not remarrying my spouse. We have been married s ince 1996 and in that marriage , a child was born. If I can live with this, the society should be able to, as well. It is not a question of lying to anyone. ... I wonder what is the protection the society needs in 98 these situations.” 2.2.5 CONSEQUENCES OF CURRENT LAW AND PRACTIC ES The personal identity code is mentioned on both official as well as less official documents like diplomas or library cards. The code is also required to apply for pensions and other benefits, for the payment of wages, salaries and fees, and for bank transactions. It is, therefore, crucial for transgender people that this number corresponds to their actual gender. The current process to obtain legal recognition can take years from the moment where transgender people are referred to specialized health institutions. Several transgender individuals interviewed by Amnesty International shared their negative experiences resulting from the divergence between their gender identity and the legal gender. old transgender man said, “ -year- Off A 20 icially I still have a female name and identity number, and I have had problems with my ID. For instance, practically every time I try to collect a parcel from the post office, I am questioned as to whether the passport is mine. The travel card has my identity number on it and when I try to get on a bus, the driver often claims it is not my card as it says ‘female’ .” an told Amnesty International: “ A 30-year -old transgender m I started my midwife studies in gal gender was not recognized. I had, 2010, when I was already taking hormones but my le for example, a conversation with my tutor teacher, in which he wanted to discuss my ‘sexuality’ as he could “see it from my identity number”. I was confused about what he meant and why he would say something like that. My sexuality was not visible in the identity number although my legal gender was. I felt really uncomfortable having the conversation and afterwards I tried to get a new tutor but no one listened to me .” 98 Interview with Heli Hämäläinen, 12 June 2013. She brought her case before the European Court of Human Rights in 2009 (Application 37359/09). On 13 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001- November 2012, the Court found no violation of Article 8 in conjunction with article 14. See, , accessed 8 November 2013. The case was referred to the Grand Chamber of the European Court of Human Rights 114486#{%22itemid%22:[%22001-114486%22]} in April 2013 at the request of the applicant and on the basis of Article 43 of the ECHR. The Grand Chamber held a hearing on 16 October 2013. Amnesty International January 2014 Index: EUR 01/001/24

46 The state decides who I am 46 46 Lack of legal gender recognition for transgender people in Europe A 20 -year- old masculine gender queer stated: “ Showing my passport or other ID is always very humiliating. In all situations where my legal gender comes up people stare for a really long time. I do not want to be a woman looking like a man .” against when I applied for a I was discriminated A 37 year- old masculine gender queer said: “ job and mentioned that I was starting hormonal treatment. We were already about to sign the contract but when I told them about the upcoming treatment, they said it would be too weird. It was a public nursery. I should have fil ed a complaint but I felt it would have been too difficult .” The lack of legal recognition of their gender can fuel discrimination and hate crimes against transgender people, which remain widespread in Finland. -LGBT survey, According to the FRA 48 per cen t of the transgender individuals surveyed and living in Finland had been 99 discriminated against in the 12 months ahead of the study. A recent study on the wellbeing of young Lesbian, Gay, Bisexual, Transgender and Intersex 100 found that many young transgender individuals face (LGBTI) people in Finland discrimination and harassment in school and other areas of life. Eighty per cent of the trans individuals interviewed had faced harassment, and generally, trans pupils are more likely to n their cisgender peers. Forty eight per cent of the trans pupils experience violence tha interviewed experienced physical violence (compared to 40 per cent of the cisgender pupils interviewed); 79 per cent experienced psychological violence (compared to 67 per cent); and 21 per cent sexual violence (compared to 14 per cent). Sixty seven per cent of the trans pupils who experienced violence perceived it was motivated by their gender identity or expression. The Ombudsman for Equality, tasked to monitor compliance with legislation on equality between women and men, collects annual statistics on reported cases of discrimination, 101 including on grounds of gender identity. According to the Ombudsman’s Office, 99 Gender identity is not explicitly included in the list of protected grounds in Finnish anti-discrimination legislation. However, the Ombudsman for Gender Equality has http://www.tasa- clarified that gender identity is de-facto a protected ground in the Act on Equality between Women and Men (609/1986), arvo.fi/en/publications/act2005 , accessed 7 November 2013. Anti-discrimination legislation is now being reviewed. The current draft of the Gender Equality Act explicitly mentions gender identity and gender expression as protected grounds of discrimination. The government was expected to make public its final proposal by September 2013 but the process was delayed. At the time of writing (December 2013), the final draft of the governmental Bill had not yet been made public. K. Alanko, How are young LGBTI people doing in Finland? Seta and the Finnish Youth Research 2013, 100 http://www.nuorisotutkimusseura.fi/how-are-young-lgbtiq- people-doing- in-finland-abstract , English summary, accessed 15 November 2013. A study by the Ministry of the Interior shows that as many as 30 per cent of the LGBTI pupils interviewed had experienced violence or threats of violence. The survey does not provide disaggregated data by sexual orientation and gender identity. K. Huotari, S. Törmä and K. Tuokkola, Discrimination in Education and Leisure: Focus on Discrimination Experiences by Sexual and Gender Minorities, Ministry of Interior Publications November 2011. Of 451 cases registered by the Ombudsman for Equality in 2012, 172 were related to discrimination. Ombudsman for Equality Annual Report 2012 , p. 60, 101 , accessed 7 November 2013. A spokesperson for the Ombudsman’s Office told Amnesty http://epaper.edita.fi/valtioneuvosto/tasa-arvo2012en/#/60/zoomed International that between 2010 and 2013 it received between five and 11 cases of discrimination on grounds of gender identity per year. Communication with the Office of the Ombudsman for Equality, 12 December 2013. Index: EUR O1/001/2014 Amnesty International January 2014

47 The state decides who I am 47 Lack of legal gender recognition for transgender people in Europe transgender people are particularly vulnerable to discrimination in the workplace or in access . 102 to the job market, although such cases are rarely brought to courts According to the FRA-LGBT survey, 40 per cent said they had experienced violence or were threatened with violence in the previous five years, and 26 per cent of them perceived the most serious attack experienced in the last year as motivated by their gender identity. Official 103 In police statistics on hate crime report only a few cases of transphobic hate crimes. 2011, for instance, the police registered three crimes motivated by the gender identity of the 104 victim, which stands in stark contrast with the prevalence of violence and threats of violence highlighted by the FRA LGBT survey. 2.2.6 OPPORTUNITIES FOR CHANGE Psychiatric diagnosis is stigmatizing and should not be a precondition for accessing health treatments and legal gender recognition. Finland violates the rights of transgender people to attain the highest standard of health and to be free from inhuman, cruel and degrading treatments by requiring them to undergo non-necessary medical treatments such as sterilization in order to obtain legal gender recognition. The length of the process to obtain documents that reflect their gender identity, and the exclusion of all of those transgender people who are not diagn osed with “transsexualism” from this process, violate their rights to private and family life and to recognition before the law. The single status requirement, while not requiring transgender people to literally be single, violates their rights to private and family life and to marry and found a family. The blanket age restriction excluding minors from the possibility of obtaining legal gender recognition may violate the right of children to be heard taking into account their evolving capacities, and the duty under human rights law to take into account the best interests of children in all matters concerning them. The reform of the Trans Act was not part of the governmental coalition agreement reached in 105 June 2011. In the wake of criticism from civil societ y organizations, human rights treaty 106 107 bodies and other human rights bodies, , the Minister of Social Affairs and Health, who 102 In 2011, a transgender woman successfully litigated a case of discrimination. The court found that the Finnish Financial Supervisory Authority (FIN-FSA), part of the Bank of Finland, had discriminated against her on grounds of gender identity in withdrawing her promotion as head of the marketing unit in the wake of her coming out as a transgender person. Helsinki District Court, Ruling No. 53071, 20 December 2011. 103 Gender Identity is not an explicitly protected ground against hate crime. However, the provisions applicable to hate crimes in the Criminal Code are in practice interpreted as providing protection against hate crimes perpetrated on grounds of gender identity. Charges were not brought against the suspects in these cases. J. Niemi and I. Sahramäki: Hate Crimes Registered by the Police in 2011, Report by the Police 104 Academy No. 104. 105 See, for example, an open letter to the Finnish government by 20 national youth, LGBTI and human rights organizations (26.10.2012), http://www.seta.fi/uutiset.php?aid=17799&k=17166 , in Finnish, accessed 7 November 2013. 106 See: Concluding Observations in Review of Finland in the UN Human Rights Committee following the 6th periodic report (CCPR/C/FIN/CO/6). 107 The Council of Europe’s Commissioner for Human Rights recommended the abolition of the single status and infertility requirem ents for the purpose of legal gender recognition. Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, follow ing his visit to Finland from 11 to 13 June 2012, CommDH (2012)27, para108. See also, ‘Recommendation 90.8, Universal Periodic Review, 2012.’ Working Group report FI, http://formin.finland.fi/Public/default.aspx?nodeid=44595&contentlan=1&culture=fi- and views on the Recommendations by the Finnish government, Amnesty International January 2014 Index: EUR 01/001/24

48 The state decides who I am 48 48 Lack of legal gender recognition for transgender people in Europe took up her functions in May 2013, established a working group tasked to propose a new draft law on legal gender recognition (hereafter Trans Act Working Group) by the end of 108 September 2014. Amnesty International met with the Trans Act Working Group on 19 November 2013 to discuss issues of concern in the current laws and practices on legal gender recognition. The Working Group gave the assurance that human rights experts would be heard in the process of drafting the law. At a seminar organized by Amnesty International Finland on 20 November 2013, State of obtaining legal gender Secretary, Ulla-Maija Rajakangas, highlighted that the possibility recognition should not be dependent on a psychiatric diagnosis or any other medical criteria, including sterilization. Representatives of both the Helsinki and Tampere trans units told Amnesty International they 109 supported the removal of the sterilization and single status requirements from the law. accessed 15 November 2013. 108 The current government is a coalition of several different parties including the National Coalition Party, Social Democratic Party, Left Alliance, Swedish People's Party in Finland, Green League and Christian Democratic Party. The latter voiced opposition to reforming current legislation on legal gender recognition.See , http://valtioneuvosto.fi/hallitus/hallitusohjelma/en.jsp governmental programme: , in English, accessed 11 November 2013. Ib. 96 109 Index: EUR O1/001/2014 Amnesty International January 2014

49 The state decides who I am 49 Lack of legal gender recognition for transgender people in Europe 2.3 FRANCE “I’ve always identified myself as a woman but it took many years before I started my transition. I was harassed [throughout my years] at school, and brutally beaten up when I was 15 years old because I was perceived as a feminine guy. After that, I thought I had to be manly. I became violent to protect myself but I was also afraid of my reactions. I occasionally wore female clothes in secret and I did not talk to anybody about my gender identity. I established an end date in my head; I would not turn 50 as a man. I would have committed suicide beforehand. It is so difficult to spend your entire life, continually at odds with what you actually are...” Hélène, a transgender woman living in Paris In France, there is no specific legislation that allows transgender people to change their gender or name on official documents. The practices followed by the courts that are responsible for dealing with requests pertaining to name and gender change ( Tribunaux de Grande Instance ) are not homogenous. However, they often require transgender people who wish to obtain legal recognition of their gender to receive a psychiatric diagnosis and undergo health treatments, including genital reassignment surgeries that result in irreversible 110 sterilization. The procedure can take several years. 2.3.1. CASE LAW 111 In France, all births must be communicated to a civil registry officer within three days. A birth certificate is subsequently issued indicating personal data such as forename, surname 112 and gender. In 1975, the Supreme Court ( ruled that transgender people could not Cour de Cassation) change their legal gender based on the principle according to which individuals cannot 113 exercise full control of their judicial personality. This principle ( indisponibilité de l’état des personnes ), aimed at guaranteeing public order, implies that it is only possible to change certain characteristics, like name or civil status, in specific instances prescribed by law. Until 1992, the Supreme Court interpreted this principle as excluding the possibility for transgender people to legally change their gender – although some lower courts had allowed transgender individuals to change forenames and gender on birth certificates before 1992. In 1992, in the case of B, a male to female transgender person, the European Court of Human Rights found that the situation in which it was impossible for her to obtain legal 110 The National Advisory Commission on Human Rights mentions between 2 and 9 years in its opinion published in July 2013. Commission Nationale Consultative des Droits de L’Homme, Avis sur l’identité de genre et sur le changement de la mention de sexe à l’état civil. http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000027778791&dateTexte=&categorieLien=id , accessed 25 November 2013. 111 Articles 55 and 56 of the Civil Code. 112 Article 57 of the Civil Code. 113 Principe de l’indisponibilité de l’état des personnes. Cour de Cassation, Chambre Civile 1, 16 December 1975, 73-10.615 http://legimobile.fr/fr/jp/j/c/civ/1ere/1975/12/16/73-10615 , accessed 21 November 2013 . Amnesty International January 2014 Index: EUR 01/001/24

50 The state decides who I am 50 50 Lack of legal gender recognition for transgender people in Europe 114 recognition of her female gender amounted to a violation of her right to private life. As a consequence, the Supreme Court established that transgender people could obtain legal recognition of their gender should they satisfy four main requirements. These are: being l and surgical treatments; losing the diagnosed with “transsexualism”; undergoing medica characteristics of their biological sex; and, having an appearance and social behaviour 115 The Court also established the principle whereby consistent with their gender identity. 116 lower courts could involve experts when assessing the fulfilment of these criteria. As a result, some courts have consistently required transgender people to undergo expert assessment, at the cost of the applicant. To that end, each court appoints a number of experts, specifically psychiatrists, endocrinologists and surgeons. In 2010, a Circular from the Ministry of Justice clarified the requirements laid down by the Supreme Court, in 1992, relating to medical and surgical treatments, stating that they did not imply the necessity to undergo gender reassignment surgeries. Hormone treatments and other surgeries were deemed to be sufficient to certify the irreversibility of the transition process undertaken by transgender people seeking legal gender recognition. Moreover, the Circular highlighted that the expertise should be required only in cases where serious doubts 117 In June 2012, the Supreme arise with respect to the “transsexualism” of the applicant. Court confirmed the decision of the Court of Appeal of Paris to deny legal gender recognition to a transgender woman who underwent genital reassignment surgery in Thailand and 118 subsequently refused to undergo expert assessment, as requested by the Court. In two recent judgments, the Supreme Court clarified that psychiatric diagnosis and proofs of the irreversible nature of the transformation of the physical appearance were necessary for 119 the purpose of obtaining legal gender recognition. 2.3.2 CURRENT PRACTICES AND REQUIREMENTS Psychiatric diagnosis is required to obtain legal gender recognition, and several appointments are usually needed. Amnesty International spoke to representatives of transgender organizations who said the process can take from a few months to a couple of years, as 114 European Court of Human Rights, case of B. v. France, application number 13343/87, judgment of 25 March 1992, http://archive.equal-jus.eu/150 , accessed 21 November 2013. http://www.acthe.fr/information/viewartrub.php?a=109 115 Judgment of 11 December 1992, number 91-11.900, , accessed 21 November 2013. 116 http://www.acthe.fr/information/viewartrub.php?a=109 Judgement of 11 December 1992, number 91-12.373, 117 Circular n. CIV/07/10 of 14 May 2010 relating to requests for legal gender recognitionl (Circulaire relative aux demandes de changement de sexe à l’état civil), http://syndromedebenjamin.free.fr/juridique/etatcivil/cec/circulaire_justice2010- 05-14.htm , accessed 22 November 2013. 118 Judgment 10-26.947, http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechExpJuriJudi&idTexte=JURITEXT000025993720&fastReqId=163538581&fastPos=5 119 Judgment 11-14.515, http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000027072698&fastReqId=246685681 ; http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000027072756&fastReqId=1034479834&fastPos=2 Judgment 12-11.949, Index: EUR O1/001/2014 Amnesty International January 2014

51 The state decides who I am 51 Lack of legal gender recognition for transgender people in Europe practices greatly vary. According to 11 mental health experts surveyed by the French National Authority for Health, the diagnostic period involved several appointments and can take up to 120 two years. Many transgender people and organizations in France view the psychiatric diagnosis as stigmatizing, and consider it as often being undertaken on the basis of gender- based stereotypes. Oscar, a transgender man living in Lille and running a trans support group, told Amnesty The first psychiatrist I visited told me that I liked feminine things too much International, “ and that I could not be a transgender man. The diagnosis is tough, especially at the beginning... [because] it is basically a process aimed at getting a paper certifying that you not are insane... It is important to get support, perhaps psychological support, but it should 121 be a psychiatric procedure. ” Access to specific transgender health care, including hormone treatments and surgeries, depends on the psychiatric diagnosis, which is thus necessary for obtaining legal gender recognition. As illustrated in the case law above, courts would almost certainly reject requests from transgender people whose “appearance has not been for legal gender recognition changed irreversibly”, which in some cases is still interpreted as requiring genital reassignment surgery despite the (non-binding) 2010 Circular. Accessing specific health treatments can take several months or years. The main medical teams dealing with transgender health care are based in Lyon, Paris, Marseille and Bordeaux. Each team operates on the basis of different practices. For instance, in Lyon, the psychiatric assessment is undertaken by two psychiatrists and a psychologist and usually takes six months. A medical commission formulates an opinion on which health treatments, including hormone treatments and surgeries, each person should access. The waiting time for the first appointment is three or four months and the waiting time for the genital reassignment 122 surgery is between 12 and 15 months. Hélène had her first appointment with a specialized medical team dealing with transgender issues in Lyon in January 2012. She had already been taking hormones since 2008 after having consulted a psychiatrist. She had to meet several times both the psychiatrist and the psychologist and an endocrinologist. The process took nine months. Her genital surgery is scheduled for March 2014. Courts follow different practices with regard to legal gender recognition. Some still require genital reassignment surgeries. Others require an expert assessment, especially in cases when surgeries are undertaken abroad. There is no legal certainty across the country as to the 120 According to these health professionals, the diagnosis is often based on the ICM-10 or the DSM IV. See, Haute Autorité de Santé, Situation actuelle et pespectives d’évolution de la prise en charge du transsexualisme, 2009, p96. In 2010, “early gender identity disorders” were removed from the list of “psychiatric long term diseases” (Decree 2010 -15 of 8 February 2010), but psychiatric diagnosis based on the ICM-10 or the DSM IV is still applied. 121 Interview with Oscar, 26 June 2013. 122 Inspection Générale des Affaires Sociales. Evaluation des conditions de prise en charge médicale et sociale des personnes trans et du transsexualisme. Decembre 2011, p. 84. Amnesty International January 2014 Index: EUR 01/001/24

52 The state decides who I am 52 52 Lack of legal gender recognition for transgender people in Europe criteria applied by different courts. A number of transgender individuals and organizations told Amnesty International they considered the processes followed by the courts to be arbitrary. Oscar told Amnesty International, “ It was relatively easy to obtain legal gender recognition in Lille a few years ago; it took between three and six months. Two years ago a new judge was appointed and it is now much harder; expertise is required so it takes longer. ” Elsa, a transgender woman living in Paris, told Amnesty International that she had not yet submitted a request to change her legal gender because the procedure is particularly burdensome and expensive in the capital. “ I should apply to the most efficient court, for instance the one in Dijon... it’s horrible in Paris. They ask for an expert assessment, which is very expensive , takes at least two years to complete and is likely to assess whether genital surgery and sterilization have been undergone. I should establish my residence in Dijon and then go there when needed, cover the transport costs... and hope that the judge remains the same [otherwise the practice can change]. At the beginning I did not take all this elements into account, as I did not have all this information. It took some time to understand how the 123 ” system works. Celine is a woman with a male past. “ It’s difficult because you have to show to the Court that you are already living as a female. To that purpose, I changed my email address to one that corresponded to my female identity but on the other hand I was always a male on my identity card, which could have raised problems if my clients asked to see my identity card. It is difficult because they ask you to live in mid-water [i.e. proving you are living as a female but with male documents]. I wanted to be operated in Thailand and I hired a lawyer before my operation to deal with the legal gender recognition. The request was introduced to the Court straight after the operation. I was summoned in April 2012 and waited until July to 124 did not require any expertise.” have the judgment. That Court Hélène, for instance, obtained legal gender recognition in October 2013 without having undergone the genital reassignment surgery as it was established by the expert assessment that hormone treatment had irreversible sterilizing effects. In practice, genital reassignment surgeries, which are still considered by some courts as a precondition for legal gender recognition, amount to sterilization as they also entail the removal of reproductive organs. For example, female to male transgender people usually have to undergo a hysterectomy (removal of womb). Understandably, many transgender people consider this to be problematic. Oscar said “Some trans people have already had children... Requiring them to be sterilized means that the state is telling them that they are sick and for that reason they should not reproduce. ” Interview with Elsa (pseudonym), 15 November 2013. 123 Céline did not consent to publication of information relating to her place of residence. Interview with Céline, 28 June 2013. 124 Index: EUR O1/001/2014 Amnesty International January 2014

53 The state decides who I am 53 Lack of legal gender recognition for transgender people in Europe I changed my name Sophie, a transgender woman living in Lyon, told Amnesty International, “ but not my legal gender because I haven't undergone genital reassignment surgery and I am not sterilized. I would like to change my legal gender but I am not convinced about the need to undergo surgery and I want to wait until the moment when I feel sure about it. In practice, you cannot freeze your sperm if you are a male to female transgender who has to undertake genital reassignment surgery. Other people who undertake medical treatments resulting in sterilization have that option. The State decides who can and who cannot reproduce. I don't 125 ” think that's acceptable. Transgender individuals and organizations also regard the additional expert assessment required by courts as problematic. Oscar told Amnesty International, “ The psychiatrist expert to whom transgender people were referred to by the court used to receive them in her office in the psychiatric ward of the main hospital. That was very stigmatizing for transgender people. She used to ask questions about sexuality and sexual orientation. Transgender people who were homosexual usually avoided saying that because they had the impression of being stigmatized by the psychiatrist and were afraid not to obtain their legal gender recognition... Psychiatrist experts have a lot of power; at the end of the day, they can decide whether your gender can be recognized or not .” Sun Hee (pseudonym), a transgender woman living in Paris, underwent genital reassignment surgeries in Thailand. She sought legal recognition of her gender in Paris. The court requested additional expertise, which she refused to obtain. As a result the court refused to 126 Sun Hee legally recognize her female gender, a decision upheld by the Supreme Court. introduced a complaint to the European Court of Human Rights and as of November 2013, is still waiting to receive information on whether the complaint is receivable. According to the French Civil Code, it is possible to change the forename on the basis of a 127 The practices followed by courts in relation to requests from “legitimate interest.” transgender individuals to change their forenames vary widely as they are based on the specific interpretation of each court on whether a “legitimate interest” is at stake. 2.3.3 CONSEQUENCES OF THE CURRENT PRACTICES As a result of current practices regulating legal gender recognition, transgender people have to wait years to obtain documents that reflect their gender identity. The divergence between their gender, appearance and documents leads to the violation of their right to privacy and in some instances to discrimination. Elsa, a transgender woman whose legal gender is still male, told Amnesty International about the difficulties arising from the divergence between her appearance and her documents, especially when looking for employmen t. “ I used to apply for jobs with my female name. I knew I would have to tell my future employers that I was a transgender person at same point, 125 Interview with Sophie, 3 July 2013. 126 Judgment 10-26.947, http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechExpJuriJudi&idTexte=JURITEXT000025993720&fastReqId=163538581&fastPos=5 127 Article 60 of the Civil Code. Amnesty International January 2014 Index: EUR 01/001/24

54 The state decides who I am 54 54 Lack of legal gender recognition for transgender people in Europe but I feared being judged. Even in interviews where the issue was not discussed I still felt pressured because I knew I would have to produce my identity card and my health insurance card [should I be offered the job]. The situation was particularly dire at the employment centre because they refused to use my female name since it wasn’t on my identity card or my health insurance card. I had to explain everything from the beginning at each meeting with a different counsellor. When I applied for jobs via the employment centres’ Internet website or when the employment centre sent my CV to potential employers, I had to use my male name. That exposed me to discrimination [because I have a female appearance].” Elsa experienced problems in other areas of her life because of the discrepancy between her appearance and her documents. “ My bank, my phone company, the social security do not use my female name, so many letters I receive refer to me as a male. The postman refuses to deliver my registered letters because he does not believe I am the addressee. I don’t want to go to the post office anymore to collect register mail; my partner does that for me. It is degrading. When I travel I try to have an androgynous look so that my appearance does not raise too many questions but I feel like a usurper. Voting is also degrading as they read out your name loudly and people stare at you.” Hélène described her negative experience at a hospital where she was scheduled for an I was in the waiting room when the nurse called me, referring operation on her vocal chords. “ -up appointment] and the same person called to me as ‘Mister’... I went back [for a follow me, again referring to me as ‘Mister’ in front of all the other patients in the waiting room. I asked her why she referred to me as a male, she said that that was the gender on my der.” documents and she asked why I did not change my legal gen Celine obtained legal recognition of her female gender in July 2012. However, she still experiences difficulties in changing her gender on some documents, including the family record book, which is a document issued by the municipality to married couples and unmarried couples with children. “ I have two children who were born in two different municipalities. One municipality has indicated on the family record book that my legal gender changed in respect of my son, the other refused to do the same in respect of my daughter; they told me that a child couldn’t have two mothers. That is an absurd 128 situation. ” The lack of legal gender recognition of their gender can fuel discrimination and hate crime According to the FRA -LGBT against transgender people, which remain prevalent in France. survey, 48 per cent of the transgender respondents in France said they had been discriminated against in the previous 12 months. Twenty -eight per cent of those respondents 18 per cent said school or university said they had experienced discrimination at work and personnel had discriminated against them. According to victims, half of the most serious episodes of violence perpetrated against transgender people were specifically motivated by 128 The introduction of marriage equality for same sex couples should entail the amendment of current rules applicable to family book records (livret de famille). http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024795921&dateTexte=&categorieLien=id , accessed 22 November Decree of 11 July 2011, 2013. Index: EUR O1/001/2014 Amnesty International January 2014

55 The state decides who I am 55 Lack of legal gender recognition for transgender people in Europe their gender identity. The body tasked to combating discrimination, formerly known as the High Authority to Combat Discrimination and to Promote Equality (HALDE), has dealt with some cases of 129 discrimination against transgender people. The Defender of Rights, the body that replaced the HALDE, has recently provided legal assistance to transgender individuals who suffered 130 discrimination in the workplace. The non-governmental organization, SOS Homophobie, recorded 1,860 cases of discrimination and violence against LGBT people in 2012, of which almost 80 (4 per cent) related to transgender people. Of the overall number of cases, about 122 (7 per cent), involved physical violence. Transgender individuals were victims in 7 per cent of the overall 131 number of cases involving physical violence. France has recently amended its legislation on sexual harassment by introducing the ground 132 of “sexual identity” in its domestic legislation. As a result, the notion of hate crime perpetrated on the ground of “sexual identity” was introduced into French Criminal law and 133 discrimination based on “sexual identity” in the area of employment was forbidden. However, such legal reform has not had the effect of protecting transgender individuals in 134 areas outside employment. Moreover, as highlighted by both Amnesty International and the Defender of Rights, the ground of “sexual identity” may be interpreted as providing only a partial protection against 135 discrimination faced by transgender people on the ground of their gender identity. 129 See, for example: Deliberation 2008-190 of 15 September 2008 with regard to harassment and discrimination faced by a transgender person in the workplace, which resulted in her resignation. www.halde.fr/IMG/alexandrie/4050.PDF , accessed 21 November 2013. 130 In 2012 for instance, the Defender of Rights intervened in the legal proceedings relating to the harassment experienced by a transgender woman in the workplace. Her managers and co-workers called her names and would not allow her to wear clothes that reflected her gender; they referred to her by using her previous male name, although she had already obtained documents indicating her preferred female name. The Defender of Rights concluded that the employer harassed and discriminated against the woman on grounds of sex. See Decision MLD 2012-22, www.defenseurdesdroits.fr/sites/default/.../01-A.pdf , accessed 21 November 2013. The HALDE established in 2008 that discrimination perpetrated against transgender people on grounds of their gender identity amounted to discrimination on grounds of sex. See, decisions 2008-28 and 2008-29, , accessed 21 November 2013. http://archive.equal-jus.eu/82 131 See, SOS Homophobie, Rapport sur l’Homophobie 2013, http://www.sos-homophobie.org/rapport-annuel-2013 , accessed 21 November 2013. 132 Loi 2012- 954 du 6 aout 2012 relative à l’harcèlement sexuel, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000026263463&dateTexte=&categorieLien=id , accessed 21 November 2013. 133 Article 1132-1 of the French Labour Code. 134 Law 2012-954 does not amend law 2008-496 of 28 May 2008 concerning several dispositions aimed at aligning French civil law on discrimination to EU law. The EU law provides protection against discrimination in areas of life other than employment, including social protection, health, education and access to good and services. In May 2013, a working group set up by the Defender of Rights concluded that integrating the ground of gender identity in French legislation aimed at combating 135 Amnesty International January 2014 Index: EUR 01/001/24

56 The state decides who I am 56 56 Lack of legal gender recognition for transgender people in Europe 2.3.4 OPPORTUNITIES FOR CHANGING LAWS AND PRACTICES Psychiatric diagnosis of transgender identities is stigmatizing for many transgender people in France. Many have highlighted that these diagnoses are often based on gender-based stereotypes. France has an obligation under human rights law to counteract such stereotypes and to ensure they are not reflected or enhanced in policies and practices. France violates the rights of transgender people to the highest attainable standard of health and to be free from inhuman, cruel and degrading treatment by requiring them to undergo unnecessary medical procedures, such as surgeries and sterilization, to obtain legal gender recognition . The extensive length of time required to complete the process to obtain legal gender recognition, and the de facto exclusion of those transgender people who do not want to, or cannot for health reasons, undergo the health procedures involved such as hormone treatments or surgeries, violate their rights to private and family life and to recognition before the law. In October 2012, the government published a programme to combat discrimination on grounds of sexual orientation and gender identity, which includes a commitment to review 136 In an advice sought by the Minister of the current framework on legal gender recognition. Ju stice and Minister of Women’s Rights, the National Advisory Commission on Human Rights recommended the adoption of a framework allowing transgender people to obtain legal recognition of their gender without the requirement of psychiatric diagnosis or specific health 137 In a meeting treatments such as hormone treatment or gender reassignment surgeries. with Amnesty International in July 2013, representatives of the Ministry for Women’s Rights, ed cautious with regard expressed support for the Commission’s advice, although they remain . to the timeline for a governmental proposal on legal gender recognition In the context of the discussion on legislation promoting equality between women and men, members of the Parliament introduced some amendments on legal gender recognition and 138 discrimination on grounds of gender identity , but they were all rejected as recommended by the government, which has expressed its intention to regulate the issue in 2014. Some of these discrimination and hate crime would provide better protection for transgender people. The National Advisory Commission on Human Rights reached the same conclusion in its opinion on gender identity and legal gender recognition. Commission Nationale Consultative des Droits de L’Homme. Avis sur l’identité de genre et sur http://www.cncdh.fr/fr/publications/avis-sur-lidentite-de -genre-et-sur- le-changement-de -la -mention- de-sexe-letat-civil , le changement de la mention de sexe à l’état civil. accessed 21 November 2013. Amnesty International raised this concern in a submission to the French government in January 2013. Amnesty International, Submission to the French government on violence and discrimination on grounds of gender identity (Index: EUR 21/001/2013), http://www.amnesty.org/fr/library/info/EUR21/001/2013/en 136 Programme d’actions gouvernemental contre les violences et les discriminations commises à raison de l’orientation sexuelle ou de l’identité de genre, 31 October 2012, http://www.gouvernement.fr/gouvernement/homophobie-et-discriminations-a -raison-de -l-identite-de -genre-un-programme-d-actions-go , accessed 25 November 2013. 137 Commission Nationale Consultative des Droits de L’Homme, Avis sur l’identité de genre et sur le changement de la mention de sexe à l’état civil, paras. 21 and 22, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000027778791&dateTexte=&categorieLien=id , accessed 25 November 2013. Amendments 80, 92, 130, 154 and 169, projet de loi pour l’égalité entre hommes et femmes, 138 http://www.senat.fr/amendements/2012- 2013/808/liste_depot.html ., accessed 25 November 2013. Index: EUR O1/001/2014 Amnesty International January 2014

57 The state decides who I am 57 Lack of legal gender recognition for transgender people in Europe amendments were in line with the recommendations of the National Advisory Commission on Human Rights and aims at introducing a framework allowing transgender people to obtain legal . gender recognition without requiring evidence of medical treatments An action undertaken by French trans activists on the International Day against Homophobia & Transphobia in Paris on 17 May 2013, © ACCEPTESS-T Amnesty International January 2014 Index: EUR 01/001/24

58 The state decides who I am 58 58 Lack of legal gender recognition for transgender people in Europe 2.4 IRELAND “If I had the legal documentation to back up what I’m saying [about my gender] then people would have to take it seriously, and not just as a phase. For me [legal gender recognition] is something to back me up... and make sure that the teachers and the headmaster accept my gender and allow me to use the [male] bathroom...whereas without it, they wouldn’t know which bathroom to let me use and how to ref er to me. So I didn’t even tell them because I just didn’t want to go into that; because I knew the teacher would mess up pronouns and everything and everyone would be looking at me.” A, an 18-year-old transgender man living in the province of Munster in south-west Ireland While the Gender Recognition Bill is in preparation, transgender people in Ireland cannot obtain legal recognition of their gender because of the current legislative gaps. Although they can change their name and apply for a passport reflecting their gender identity if they comply with certain conditions, they cannot obtain a birth certificate or certain other documents in line with their gender identity. 2.4.1. CASE LAW AND PRACTICES In Ireland, all births, marriages or civil partnerships, and deaths are recorded and stored at the General Registry Office, which issues birth certificates to the parents of the newborn child. This certificate is an important document, which is needed, for example, to enrol in school or to obtain a passport. According to the Civil Registration Act 2004, the birth of a child should be registered within three months. The sex of the child has to be registered on the basis of the “best knowledge and belief” of the parents, guardians or any other qualified 139 informants. The sex assigned at birth is indicated on the birth certificate. In some instances, the information on the birth certificate can be amended, for example, to correct a factual error or alter a forename. The request to amend the birth certificate should 140 or when the forename is come from either the person concerned or the Registrar General 141 altered or a new forename is added. However, pending the enactment of new legislation, transgender people cannot change the sex they were assigned at birth indicated on their birth certificates. 139 Civil Registration Act 2004, Section 19. For a definition of “qualified informant” see Section 19.6. http://www.irishstatutebook.ie/2004/en/act/pub/0003/ , accessed 24 January 2014. 140 Sections 63 and 64, Civil Registration Act 2004. 141 Section 25, Civil Registration Act 2004. Index: EUR O1/001/2014 Amnesty International January 2014

59 The state decides who I am 59 Lack of legal gender recognition for transgender people in Europe L CASE DR. LYDIA FOY’S LEGA In 1993, Dr. Lydia Foy, legally male, asked the Registrar General to amend the gender on her birth 142 certificate. Her request was turned down. In a written communication dated 11 February 1997, the Assistant Registrar General communicated to Dr. Foy that her birth certificate could not be amended as “it is a record of a particular event, which occurred on a particular day... [and] is not, nor did the law intend it to be, a personal record which is to be constantly updated to take account of every significant change in the life history of the subject”. According to this communication, the genital characteristics of the child at birth have to be used to identify the sex. Dr. Foy took her case before the High Court. In July 2002, the Court found that the Registrar General’s refusal to amend Dr. Foy’s birth certificate was in line with both statutory and common 143 law provisions and did not violate her human rights. Two days later, the European Court of H uman Rights issued its decision in Goodwin v. United Kingdom , finding that the United Kingdom had breached the European Convention of Human Rights by preventing Ms. Goodwin, who had undergone genital reassignment surgery, from obtain ing legal recognition o f her female gender . Dr. 144 , therefore Foy In 2007 the High Court found that the , appealed against the Irish High Court’s decision. impossibility for Dr. Foy to obtain an amended birth certificate in order to reflect her female identity was the European Convention of Human Rights and in particular with articles 8 (right to family incompatible with 145 and private life) and 12 (right to marry). The Irish government appealed against this decision in the Supreme Court, but eventually withdrew it in 2010, conceding that Irish law was in breach of the European Convention on Human Rights. The government committed to enacting legislation to address that breach. In , Dr. Foy launched a new proceeding with the aim of enforcing the 2007 judgment in her January 2013 146 favour. Transgender people can easily change their name by deed poll, which is a signed declaration that binds the signatory to a particular course of action from the date of signing. The only documents needed are the birth certificate and a photo ID, such as the passport or the driving licence. In Ireland, there are no specific rules on names and a person is allowed to bear a name that is not gender neutral and that does not correspond with the legal gender. Since 2008, transgender people can also obtain a passport that reflects their preferred name 142 At that time the Civil Registration Act 2004 was not in force. The registration of births was regulated by the Births and Deaths Registration Act 1863, which also required the registration of the sex of the child. 143 In particular , the High Court relied on Corbett v Corbett [1970] 2 W.L.R. 1306, according to which the sex for the purpose of marriage should be determined on the basis of the congruence between genital, chromosomal and gonad tests. According to the judge, such criteria have been adopted for many other purposes including for the determination of the sex of children at birth. Foy v. An-t-Ard Chlaraitheoir, Ireland and the Attorney General, 1997 No. 131 JR. 144 The Supreme Court referred the case back to the High Court taking into account the European Court of Human Right’s judgment i n Goodwin v United Kingdom, the introduction of the European Convention on Human Rights Act 2003 and the Civil Registration Act 2004. A declaration of incompatibility with the European Convention of Human Rights was made by the High Court on the basis of Section 5 of the European Convention 145 on Human Rights Act 2003. Foy v An-t-Ard Chlaraitheoir and Others, [2007], IEHC 470. 146 Meeting with the Free Legal Advice Centre, FLAC, 23 October 2013. Amnesty International January 2014 Index: EUR 01/001/24

60 The state decides who I am 60 60 Lack of legal gender recognition for transgender people in Europe and gender identity, although they have to comply with some requirements. The Passports Act 2008 requires medical evidence that the applicant is undergoing, or has undergone, treatments and procedures aimed at alterin g the “sexual characteristics and the physical 147 appearance to those of the new sex.” According to the Passport Office, situated within the Department of Foreign Affairs and Trade, transgender people can in practice obtain a passport reflecting their gender identity and their preferred name if they produce medical evidence that the gender has changed and that they are using their preferred name, for Medical Evidence normally constitutes a instance following a name change via dead poll . letter from a psychologist and an endocrinologist. The Office clarified that, in addition to providing medical evidence, transgender people can obtain a passport indicating their preferred name if they can prove they are currently using that name. Most of the time, in practice, this is demonstrated by showing that the name was changed by deed 148 poll. However, transgender individuals and civil society organizations told Amnesty International that the processes through which transgender people receive new passports 149 greatly vary and the medical evidence required is not always consistent. The current rules do not allow transgender people who have not completed the diagnostic process or have not accessed hormonal treatment to obtain passports that reflect their gender identity. Neither the Health Services Executive (HSE), the body providing health and social care services in Ireland, nor the Irish College of Psychiatrists have adopted specific policies or standards of care with regard to the psychiatric diagnosis applicable to transgender identities and access to specific treatments such as hormonal treatment. Therefore, it may take a long time for transgender people to access these treatments and thus to abide by the conditions set out by the Passport Act 2008. 2.4.2 CONSEQUENCES OF LEGISLATIVE GAPS AND CURRENT PRACTICES Several years after the High Court judgment in the Foy case, transgender people still cannot change their birth certificate. Such a situation has a detrimental impact on the enjoyment of their right to private life as birth certificates are required for several purposes in Ireland, including enrolment in schools and accessing social services. Sine ad is a 44-year-old woman. She transitioned 15 years ago and underwent genital reassignment surgery in Belgium. However, her birth certificate still indicates that she is a male. She told Amnesty International, “ The birth certificate issue is killing me. When I was 20 I bought four Waterford crystal champagne glasses to toast the day I got a new birth certificate. 24 years later , I’m still waiting. ” She shared her experiences with the council authorities. “ I needed to get on the council housing list and that required showing my birth certificate. 147 Passports Act 2008, Section 11, gender reassignment. Email Communication with the Director of the Passport Office, 14 November 2013. 148 Meeting with TENI, 21 October 2011; meeting with Gay and Lesbian Equality Network (GLEN), 22 October 2013 149 Index: EUR O1/001/2014 Amnesty International January 2014

61 The state decides who I am 61 Lack of legal gender recognition for transgender people in Europe I had to explain that I was transgender to someone whom I barely knew. couldn’t bear to I 150 ” look at the certificate. It went against every fibre of my being. Martin, a trans man living in Cork, has changed his name via deed poll and got a passport reflecting his male gender identity. However, his birth certificate still indicates the former female name and the female sex he was assigned at birth. He told Amnesty International that he had to produce his birth certificate to access rent supplement [a welfare payment aimed at funding part of the rent in private accommodation]: “ The form required my first name as it appears on my birth cert, in addition to my present full name. My birth-assigned sex was exposed in doing so. I felt that was an unnecessary disclosure for accessing some basic support. What meaningful use is the Passports Act 2008 to me, an Irish transgender citizen, if some purposes still require my current birth certificate in spite of my passport? Gender 151 ”. Recognition would alleviate this issue A, the 18-year old transgender man, told Amnesty International that he did not want to open a bank account because he would need to produce his passport, which reflects the female sex he was assigned at birth and cannot be easily changed because of the existing legislation. He told Amnesty International about his experience at the Dublin airport while he was travelling to Spain with his classmates. “I was with 40 people who, [apart from one of my A security officer friends], didn’t know I was transgender. Not even my teachers knew. pulled me aside and started asking questions. Because by then I had my hair cut short and everything and I was obviously wearing guys’ clothes. So they were all like, ‘Is this a forged passport? Is this who you really are? Why does it say female?’ So I had to explain that I was transgender and that I hadn’t cha nged my passport yet because that wasn’t possible. And then my teacher came over and he asked me what was the problem and I just had to make u p 152 officer made a mistake.” something... I said the security Andy, another young transgender man had a similar exp erience at the Dublin airport. “ I was going to Frankfurt recently and in the airport I got pulled aside when I was checking in. They didn’t believe that it was my passport. They just didn’t think it was me... maybe it was because I passed as male or whatev er... I also had my female name on the boarding card and Andy on my travel document [the receipt he got from the travel agency had to be presented to 153 get the boarding pass].” Transgender people also told Amnesty International of the difficulties in accessing tertiary education in instances where they had already changed their name but their secondary 150 Interview with Sinead (pseudonym), Dublin, 21 October 2013. 151 Interview with Martin, Cork, Ireland, 24 October 2013. Interview with A, Dublin, 22 October 2013. 152 Interview with Andy, Dublin, 24 October 2013. 153 Amnesty International January 2014 Index: EUR 01/001/24

62 The state decides who I am 62 62 Lack of legal gender recognition for transgender people in Europe 154 education diploma (leaving certificate) indicated their old name. Furthermore, gender markers are also electronically encoded in the public services card, which is necessary to 155 The Department for of welfare payments. access some services including the collection Social Protection told Amnesty International that transgender individuals can ask to change the gender markers associated with the public services card if they produce “medical evidence from a registered practitioner that the individual has undergone, or is undergoing, treatments or procedures or both to alter their sexual characteristics and physical 156 appearances to that of their new sex. A passport in the pref erred gender is not necessary”. Darrin is a transgender man who changed his name via deed pool. He shared with Amnesty International the problems stemming from the delay in reissuing a social services card bearing his new male name. “ I have a social security card and it used to have my old name on it. It took about two years to get a new one issued with my new name on it. [In that period] when I went to the post office to pick up my money [welfare payments] I was asked in front of everyone in the post office, well whose card have you stolen? [The problem was that] when they scanned [my information] my new name, ‘Darrin’, would come up on their computer, but it was a very female name on the card. So I would have to explain in a post 157 office what my sit uation is.” The lack of legal recognition of their gender can fuel discrimination and hate crime agains t -LGBT survey, According to the FRA transgender people, which remain widespread in Ireland. 58 per cent of the transgender individuals surveyed and livi ng in Ireland had been discriminated against in the 12 months ahead of the study. Forty -two per cent of the transgender individuals surveyed said they had experienced violence or were threat ened with violence in the previous five years. Sixty -two per cent of them perceived that the last episode of violence or threat of violence was motivated by their gender identity. In a 2012 survey on mental health and wellbeing, 78 per cent of the transgender individuals surveyed in Ireland said that they had thought about or attempted suicide more often before or the medical transition may bring transitioning, suggesting that coming out as transgender substantial relief. The survey highlights an extremely high level of vulnerability to self-harm 158 and suicide among transgender people. 154 Meeting with TENI, Dublin, 21 October 2013. 155 The Irish government started issuing new public services cards in 2012. They are supposed to progressively substitute old public services cards as well as other cards needed to access some goods and services including the social services cards. 156 Meeting with representatives of the Department of Social Protection, Dublin, 25 October 2013. Email communication between Amnesty International Ireland and the Department, 8 January 2014. 157 Interview with Darrin, Cork, Ireland, 24 October 2013. -being survey. Se harm. Ireland’s trans mental health and well lf-harm and 158 Also, forty-four per cent of those surveyed said they experienced self- Index: EUR O1/001/2014 Amnesty International January 2014

63 The state decides who I am 63 Lack of legal gender recognition for transgender people in Europe The Employment Equality Act 1998 and the Equal Status Act 2000 prohibit discrimination on nine grounds including gender in employment and areas such as access to goods and services, health and education. The gender ground in the equality laws has been interpreted as providing protection against discrimination on grounds of gender identity. The Department 159 of Social Protection in cooperation with the Department of Justice and Equality is considering whether to explicitly introduce the ground of gender identity into Irish equality law in the context of the Bill on Legal gender recognition 2013. This may have a positive impact in raising awareness on discrimination against transgender people and in facilitating the reporting of discrimination. The 1989 Prohibition of Incitement to Hatred Act forbids actions, broadcasting, and possession and distribution of materials that “are likely to stir up hatred” on grounds of race, 160 However, there is no specific legislation in religion, nationality or sexual orientation. Ireland to ensure that any alleged hate motive associated with a crime is thoroughly investigated and taken into account in the prosecution of suspects. Statistics on hate crime are collected by the police and published by the Central Office for Statistics (CSO). Disaggregated data are available on a number of grounds including race, ethnicity, sexual 161 orientation and citizenship but not on gender or gender identity. Transgender Equality Network Ireland (TENI) participates at Dublin Pride Dublin 2012, ©Alison McDonnell http://www.teni.ie/suicide_in_trans_communities___new_data_from_the_mental_health__well_being_survey suicide. TENI, , accessed 27 October 2013. 159 Meetings with representatives of the Department of Social Protection and the Department of Justice and Equality, 25 October 2013. 160 Prohibition of Incitement to Hatred Act, Articles 2, 3, 4, http://www.irishstatutebook.ie/1989/en/act/pub/0019/print.html#sec4 , accessed 28 October 2013. 161 According to the official statistics provided by Ireland to the Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR), the police registered 162 hate crimes in 2011, of which 136 were committed on the ground of race. OSCE/ODHIR, Hate Crime in the OSCE region: incidents and responses. Annual Report 2011. According to the Equality Authority several problems persist with regard to the registration of hate crime by the police. See Séamus Taylor, Responding to racist incidents and racist crimes in Ireland, an issue paper for the Equality Authority, September 20 10. Amnesty International January 2014 Index: EUR 01/001/24

64 The state decides who I am 64 64 Lack of legal gender recognition for transgender people in Europe 2.4.3 OPPORTUNITIES FOR CHANGING LAWS AND PRACTICE The current lack of legislation to allow transgender people to obtain birth certificates that reflect their gender violates their rights to private and family life and to recognition before the law. Current laws and practices that require transgender people to undergo medically unnecessary treatments for the purposes of acquiring a gender appropriate passport violate their rights to the highest attainable standard of health. In the aftermath of the High Court’s judgement in the Dr. Foy case, and in the face of growing criticism from human rights treaty bodies and other international human rights bodies, the Minister for Social Protection established a Gender Recognition Advisory Group (GRAG) in May 2010. The GRAG was tasked to advise the Minister on the legal framework required for legal gender recognition . The GRAG published a report in June 2011 outlining recommendations on the qualification criteria to access legal gender recognition. However, it failed to separate the issue of legal gender recognition with psychiatric diagnosis and specific transgender health-care treatments. Furthermore, it required medical evidence in the form of either a statement from a practitioner attesting that the person had undergone gender reassignment surgery or received a formal psychiatric diagnosis accompanied by treatments undergone or in progress such as hormone therapy or minor surgeries. Moreover, the GRAG recommended applicants be asked to provide independent evidence of a two-year period in which they had lived “fulltime in the preferred gender”. It also advocated banning minors and persons who are 162 married or in a civil partnership from being able to obtain legal gender recognition. Following the publication of the GRAG report, the Department for Social Protection engaged in an informal consultation with civil society organizations and health professionals with the aim of drafting a bill. The Minister, Joan Burton, reiterated on several occasions that she intended to introduce legislation allowing transgender individuals to obtain legal gender 163 However, no specific timeline was established for that process. In a recognition in Ireland. 164 letter to the Council of Europe Commissioner for Human Rights, dated 3 December 2012, the Minister said that the government had sought the opinion of the Attorney General on the marital status and civil partnership status requirements suggested by the GRAG. 162 Gender Recognition Advisory Group Report to Joan Burton, T.D., Minister for Social Protection, 15 June 2011, http://www.welfare.ie/en/Pages/Report-of-the - Gender-Recognition-Advisory-Group.aspx , accessed 31 October 2013. 163 See, for example: Minister Burton’s statement at the 4th European Transgender Council held in Dublin in September 2012, http://www.thejournal.ie/joan-burton- gender-587902-Sep2012/ , and press release of the Equality Authority: http://www.equality.ie/en/Press-Office/Protection-of-Transgender-People-%E2%80%93-Equality- Authority-welcomes-Minister%E2%80%99s-statement.html , accessed 31 October 2013. http://www.tgeu.org/sites/default/files/2012_12_03_Reply_Minister_Burton.pdf , accessed 12 November 2012. 164 Index: EUR O1/001/2014 Amnesty International January 2014

65 The state decides who I am 65 Lack of legal gender recognition for transgender people in Europe 2.4.4 THE GENERAL SCHEME OF THE GENDER RECOGNITION BILL 2013 The Department for Social Protection eventually published the General Scheme of the Gender 165 Recognition Bill 2013 in July 2013. Overall, the Scheme conforms to international human rights standards more than the GRAG recommendations. For instance, the Scheme does not explicitly require transgender people to receive a psychiatric diagnosis and undergo surgeries or to have lived in their preferred gender for a specific number of years, before 166 obtaining legal gender recognition. However, t he Scheme is problematic insofar as it still requires a statement by a “primary treating physician” confirming that the person seeking legal gender recognition is transitioning, or has transitioned, to the preferred gender. Moreover, the Scheme restricts the possibility to obtain legal gender recognition to transgender people who are aged 18 years 167 and above and who are neither married nor in a civil partnership. These requirements, if included in the new law, may violate the rights of transgender people to the highest attainable standard of health and to private and family life. The age restriction will violate the state’s obligation to take account of the child’s freely expressed views regarding their own es. best interests, in light of their evolving capaciti Physician statement Crucially, , the criteria on which a physician will assess whether an individual “has transitioned or is transitioning” are unclear and may result in implying the need for a psychiatric diagnosis or specific health treatments such as hormone treatment or surgeries. The same formulation in the Passport Act is interpreted as requiring evidence of medical treatment in order to obtain a new passport. The Department of Social Protection told Amnesty International that the government is in favour of maintaining a system of validation according to which the statement can be delivered by an endocrinologist, a psychiatrist or a http://www.welfare.ie/en/Pages/Gender-Recognition-Bill-2013.aspx , accessed 1 November 2013. 165 Members of Parliament have tabled two other proposals in the Irish Parliament (Oireachtas) that do not require medical evidence or any other 166 cumbersome requirement, such as single status or age of majority, as a condition to access legal gender recognition. On 23 May 2013, Deputy Aengus Ó Snodaigh introduced the Gender Recognition Bill 2013 in the Lower Chamber of the Irish Parliament (Dáil Éireann), http://www.oireachtas.ie/documents/bills28/bills/2013/5613/b5613d.pdf , accessed 14 November 2013. Senator Katherine Zappone introduced the Legal Recognition of Gender Bill 2013 in the Senate (Seanad Éireann) on 2 July 2013. http://www.oireachtas.ie/documents/bills28/bills/2013/7513/b7513s.pdf , accessed 13 November 2013. 167 Many civil society organizations in Ireland have expressed concerns on these three issues. See the transcripts of the hearings before the Joint Parliamentary Committee on Education and Social Protection. Hearings held on 23 October 2013, http://oireachtasdebates.oireachtas.ie/Debates%20Authoring/DebatesWebPack.nsf/committeetakes/EDJ2013102300001?opendocument ; Hearings held on 24 October 2013: http://oireachtasdebates.oireachtas.ie/Debates%20Authoring/DebatesWebPack.nsf/committeetakes/EDJ2013102400003?opendocument#B0 0100, accessed 1 November 2013. See also, Amnesty International Submission to the Department of Social Protection on the General Scheme of the Legal .The Irish Human Rights gender recognition Bill 2013, http://www.amnesty.ie/sites/default/files/AI%20submission%20to%20DSP%2018Oct2013.pdf Commission raised concerns on these three aspects. Observations on the General Scheme for the Gender Recognition Bill, November 2013, http://www.ihrc.ie/download/pdf/ihrc_observations_on_the_general_scheme_of_gender_recognition_bill_november_2013.pdf , accessed 15 January 2013. Amnesty International January 2014 Index: EUR 01/001/24

66 The state decides who I am 66 66 Lack of legal gender recognition for transgender people in Europe paediatrician. The Department is of the opinion that such a system is necessary to protect all those people who have mental health problems and who may wrongly perceive themselves as 168 transgender. The College of Psychiatrists of Ireland told Amnesty International that although they favour a system of validation by professionals to access specific transgender health treatments, they do not have a position on whether such a system should also be 169 applied to transgender people who wish to obtain legal gender recognition. Age restrictions The inclusion of a the blanket age restriction included in the Scheme has been explained as arising from the need to protect children, who are more likely to change their mind with regard to gender identity. The GRAG report indicated that certain mental health professionals supported that view. However, the College of Psychiatrists of Ireland told Amnesty International that it does not have a formal position on whether children should be entitled to legally change their gender. The Department of Social Protection told Amnesty International that the government strongly supports this age requirement. Civil society organizations in Ireland strongly criticized this age restriction, especially in the light of provisions in Irish law according to which adolescents aged between 16 and 18 can consent to medical, surgical and dental treatments as if they were of full age and without the consent of their parents or 170 The Ombudsman for Children also criticized the age restriction highlighting that, guardian. if implemented, it would fail to improve the situation of transgender children and 171 adolescents, who in many cases already experience isolation and discrimination. She recommended that parents be allowed to apply for a gender recognition certificate for children younger than 16 years while adolescents aged between 16 and 18 should be able to 172 apply on their own. Amnesty International spoke to teenagers and young people who explained why legal gender recognition is important for underage youth, especially in light of the difficulties often experienced in secondary school. Dan is a young transgender man who experienced problems with his family and at school because of his gender identity. He said, “ If the gender recognition bill does not include people under 18, school authorities [could say] you’re actually not allowed to be trans until you’re 18. They can twist it to suit their own means. ” Dan told Amnesty International that school authorities understood his situation when he 168 Meeting with the Department of Social Protection, 25 October 2013. 169 Meeting with the College of Psychiatrists of Ireland, 24 October 2013. 170 Non- fatal Offences against the Person Act, 1997, Section 23.1: “The consent of a minor who has att ained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his or her person, shall be as effective as it wou ld be if he or she were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his or her parent or guardian.” http://www.irishstatutebook.ie/1997/en/act/pub/0026/sec0023.html#sec23 , accessed 1 November 2013. 171 Advice of the Ombudsman for Children on the Scheme for the Legal gender recognition Bill 2013. October2013. , accessed 1 November 2013. http://www.oco.ie/assets/files/publications/advice_to_government/Updated%20advice/OCOAdviceonGenderRecognitionBill2013.pdf Meeting with the office of the Ombudsman for Children, 23 October 2013. 172 Index: EUR O1/001/2014 Amnesty International January 2014

67 The state decides who I am 67 Lack of legal gender recognition for transgender people in Europe presented a certificate from his psychologist explaining that he was transgender, but there was a mixed response from them. For instance, they allowed him to wear a tracksuit bottom (as opposed to the usual boy’s trousers) and registered him with his male name but they did not allow him to use the male toilets. When he came out to his classmates, the religion teacher changed his name to Daniel on the registry roll but when the year head found out, it was changed back to his legal female one. Dan also experienced situations in which his privacy was violated. “ We had a free class with a teacher I don’t usually have. I was sitting at the f irst desk right in front of her and she was reading out some names. She called out my birth name and I raised my hand and she looked at me really sceptically. She called out the name louder and I put my hand up again and she I had to show her my journal to prove my name to her, told me to show her my journal – which is ridiculous because if they just let me use the other name it would save 173 ” Dan could change his name on the registry only after having changed it via problems. deed poll, and although he is no w allowed to wear boy’s trousers, he has not been allowed to use the male toilets. Sarah is a mother of three children. Her middle child, Kelly was born male but she has asserted her identification as female since the age of four. Kelly was very unhappy a nd repeatedly expressed suicidal thoughts. Sarah was shocked and decided to consult a psychiatrist, after which she decided to allow Kelly to express her gender identity. Kelly still has a legal male name and gender. She is enrolled in school as a male as the school registry has to include the legal name and gender. Sarah also had to produce Kelly’s birth certificate when enrolling her in primary school. She was once stopped and questioned at the Singapore nd with the gender indicated on her airport because Kelly’s appearance did not correspo documents. “ Immigration officials laughed at us. One even called a colleague over for a look. It was humiliating and very upsetting for Kelly. The immigration official asked me, ‘Why do ’ We also came across [negative] reactions you let him wear his hair long and dress like that? in Abu Dhabi, Malaysia and Australia but the officials were more polite.” For Sarah is it vital that legal gender recognition and transgender health treatments are accessible to minors. “ I just want to keep this child alive. I have a happy child now, why end up... on a psychiatric ward? Why end up with a dead child? I found out about a 10 -year -old in the UK who killed himself because he wanted to be a girl. That’s what I’m trying to avoid... It’s impor tant that she gets documents that reflect her gender. What if she is learning to drive? What if she goes on holiday with her friends and she is 16 and she is asked for her ID? Or what if it’s a policeman in a foreign country who wants ID? If the legislatio n is in place...it means that you are not setting [transgender people] up for a hard life, for discrimination, – that by misunderstanding or prejudices... I have heard the argument changing your name, you are tricking people; that it’s like identity fraud or t hat anybody who is really a man could pretend he is a woman and commit insurance fraud or anything. That’s 174 criminal activity and there are al ready legal procedures to protect us against all that .” Interview with Dan, Dublin, 24 October 2013. 173 Interview with Sarah (pseudonym), 21 October 2013. 174 Amnesty International January 2014 Index: EUR 01/001/24

68 The state decides who I am 68 68 Lack of legal gender recognition for transgender people in Europe Single status The Scheme explicitly excludes those who are married or in civil partnership. The Department for Social Protection told Amnesty International that this restriction is aimed at avoiding a situation in which a marriage between two persons of different sex becomes a same-sex marriage as a result of the legal gender recognition of one of the spouses. Similarly, the situation in which two persons of different sex become bound by a civil partnership as a result of a legal gender recognition should be avoided, as civil partnerships in Ireland are 175 The government is of the view that the Irish accessible only to same-sex partners. Constitution forbids same-sex marriages, even though there is no such explicit prohibition in 176 177 and the the Constitution. The government bases this conclusion on domestic case law 178 According to the Department for Social opinion of the Attorney General on this issue. Protection, this issue may be solved as a consequence of a positive outcome of the 179 referendum on marriage equality, which the government has said will be held in 2015. Patricia (Trish) is a 53-year-old transgender woman who is still legally a male. She is married to Susan. They have two children who are in their 20s. For Patricia, legal gender recognition is the final step of a long and difficult process through which she became aware of her gender identity. However, they strongly oppose the idea of divorcing, should the single status requirement be included in Irish legislation on legal gender recognition. Patricia told After all those years of pai n... the final stage, the final step, to be Amnesty International, “ recognized in the eyes of the law will be denied, unless we divorce. At the end of the day all you want is to be recognized for who you are, and that will be denied. ” Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. 175 Article 41.2 of the Irish Constitution reads, “The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessa 176 ry basis of social order and as indispensable to the welfare of the Nation and the State.” 177 See the High Court’s judgment in Zap pone and Gilligan v. Revenue Commissioner, [2006] IEHC 404. Section 2.2.e of the Civil Registration Act 2004 explicitly considers an impediment to marriage where the partners are of the same sex. 178 This opinion is confidential and is unpublished. 179 A process is underway to revise the Irish Constitution. In July 2012, the parliament established the Constitutional Convention, a participatory forum involving members of the public and parliament with a mandate to develop recommendations in specific areas, including marriage equality. In July 2013, the Convention recommended that the government change the Constitution to enact marriage equality. Third Report of the Constitutional Conven tion, Amending the Constitution to provide for same-sex marriage, July 2013. According to Article 46 of the Constitution, every amendment should be submitted to referendum. , accessed 1 November 2013. On 5 November 2013 the https://www.constitution.ie/AttachmentDownload.ashx?mid=c90ab08b-ece2-e211-a5a0-005056a32ee4 government formally accepted this recommendation and committed to holding a referendum on the matter in 2015. Index: EUR O1/001/2014 Amnesty International January 2014

69 The state decides who I am 69 Lack of legal gender recognition for transgender people in Europe Susan does not view Trish’s transition and the single status requirement as a valid reason for divorce. “ Trish has become who she is within the marriage, later in her, in our life. I’m still married to the person I married; Trish is still the genuine, honest, decent person she always was. I don’t see any reason for me to divorce and I want that to be my choice if I do. I don’t want it to be the government’s choice, or somebody who doesn’t know me or know Tri sh .” Patricia added, “ Everybody would agree that forced marriage is a terrible violation of someone’s rights, but in order for me to express myself in the gender I feel I should be, we’re being forced to divorce. So, the government will say, ‘no you have a choice, you can either be able to change your divorce and change your gender or you can stay married but you won’t 180 .” birth certificate... your gender won’t be recognized’ In Ireland, a divorce can only be obtained after the spouses have lived apart for at least four out of the five years ahead of the request and only when there is no reasonable prospect of reconciliation. Dissolution of civil partnerships can be obtained only after the partners have lived apart for at least two out of the three years prior to the request. The single status rule, if established under Irish law, will substantially delay, if not make it impossible, for transgender people who are married or in a civil partnership to obtain legal recognition of their gender. Following the debate held in October 2013, the Joint Parliamentary Committee on Education and Social Protection recommended to the government not to include the single status requirement and to lower the age requirement to 16 in the Bill. Furthermore, the Committee suggested the government reconsidering the Scheme’s wording relating to the “evidence of transition” required to obtain legal gender recognition. According to the legislative programme published by the Irish government in January 2014 and referring to spring and summer 2014, it is not possible to indicate when the Bill is published. Interview with Susan and Patricia, Cork, Ireland, 24 October 2013. 180 Amnesty International January 2014 Index: EUR 01/001/24

70 The state decides who I am 70 70 Lack of legal gender recognition for transgender people in Europe 2.5. NORWAY Transgender people in Norway can obtain legal recognition of their gender on the basis of an administrative practice established in the 1970s. This practice places health professionals at the centre of the decision-making process and requires compulsory treatments including gender reassignment surgeries and removal of reproductive organs, which result in irreversible sterilization. Transgender people can change their name relatively easily; the process requires the notification of the request to the Norwegian Tax Administration in the Ministry of Finance, 181 However, the name change is not followed by a title change, which authorizes the change. until, and if, all the medical requirements to obtain legal gender recognition are satisfied. 2.5.1 CURRENT LAWS AND PRACTICES In Norway, personal data are stored in the national population register, which is administered 182 by the Norwegian Tax Administration in the Ministry of Finance. Norwegian citizens and 183 which contains the date residents are assigned an 11-digit national identification number, 184 of birth and the sex assigned at birth. According to the regulation implementing the Norwegian national population register, the national identification number can be changed if 185 the gender ( kjønnsstatus ) changes. All the official documents in Norway are issued on the basis of the information in the National Population Register, including the gender marker contained in the national n identification number. The gender change is not legally recognized until the gender marker i the national identification number is amended accordingly. Although, the regulations currently in place mention the possibility of changing the national identification number, there is no specific law regulating th is change. According to a practice established in the mid-1970s, the Norwegian Tax Administration can only change the national identification number of transgender people, and more specifically the number referring to the sex they were assigned at birth, when it receives a green light from the Oslo University Hospital Rikshospitalet (OUS). According to this practice, the OUS signs off on 06-07 -19 181 Law on Personal Names, §11, http://lovdata.no/dokument/NL/lov/2002- , in Norwegian, accessed 16 December 2013. Act on Population Registration, §1, http://lovdata.no/dokument/NL/lov/1970-01 -16-1 , in Norwegian, accessed 27 November 2013. Population registers were set 182 up in 1967 by local authorities. The implementation of a central population register began in 1963. 183 This national identification number is assigned to every child born to a Norwegian national when the birth is registered, and to foreigners who move to Norway and stay for more than six months. Newborn babies have to be registered in the local register of the municipality where the birth occurred within a week of the birth by the attendant midwife or physician or within a month by the mother, if she gave birth on her own. 184 Example of an identification number: 21 09 79 345 73. The first six digits indicate the date of birth, the last two digits are automatically calculated by computer. The three digits in between constitute the serial number; in this case 5 is an odd number, which indicates that the person’s gender is male. , in Norwegian, accessed 27 November 09-1268?q=folkeregister 185 Regulation on the Population Registration, §2.2, http://lovdata.no/dokument/SF/forskrift/2007- 11- 2013. Index: EUR O1/001/2014 Amnesty International January 2014

71 The state decides who I am 71 Lack of legal gender recognition for transgender people in Europe requests from transgender individuals to change their personal identification number only when a “real sex conversion” can be certified. This requires transgende r people to fulfill a whole set of medical requirements including the surgical removal of reproductive organs. The OUS is the only institution in Norway where transgender people can access health treatments, including genital reassignment surgeries, and it makes key decisions in the three crucial areas: fulfillment of the diagnostic criteria; provision of health treatments; and determination of whether the criteria for obtaining legal gender recognition have been achieved. 2.5.2 MEDICAL REQUIREMENTS: THE PSYCHIATRIC DIAGNOSIS A multidisciplinary specialized unit on transsexualism (hereafter Trans Unit) has been 186 Rikshospitalet) since the 1970s. established within the Oslo University Hospital ( The psychiatrists of Trans Unit are in charge of diagnosing transgender individuals, who are referred to them by general practitioners, psychologists or psychiatrists. The psychiatric diagnosis is based on the relevant categories of “gender identity disorders” included in the -10). Access to specific transgender health care in CD International Classification of Disease (I Norway is made possible only in instances where a diagnosis of “transsexualism” is 187 Those who are given other diagnoses (F64.8 established (F64.0 or F64.2 of the ICD-10). or F64.9 of the ICD-10, for ins tance) or those who are not diagnosed with any “gender -funded health treatments such as reassignment identity disorder” cannot access state surgeries, and are ultimately excluded from the possibility of seeking legal gender recognition. That is why the diagnosis is crucial for many transgender people who seek legal gender recognition . In 1974, a specific working group was established. In 1979, the national service for treating transsexualism (nasjonal behandlingstjeneste for transseksualism) was 186 set up. 187 See Appendix II for more information on these categories. Amnesty International January 2014 Index: EUR 01/001/24

72 The state decides who I am 72 72 Lack of legal gender recognition for transgender people in Europe Luca is a young transgender man who was referred to the Trans Unit in 2010 and who is still legally a female. “ The F64.0 diagnosis is my card of triumph because [it means] they cannot force me to undergo any treatment, but on the other hand they cannot forbid me accessing any if I so wish. My first appointment at the University Hospital was in May 2011 and I had to go back eight times in the following 11 months... It w as funny because they tried to discourage me... I was told that the treatment would leave me disabled forever... and that I was not really depressed. The focus was on how bad the gender reassignment treatment was and how people deal with that afterwards. They told me they did not think the treatment would improve my life. That is horrible... I don’t even know when I got the diagnosis because they did not officially communicate it...I understood that I got the diagnosis in May 2011 from another 188 .” doctor at the hospit al Luca Daln Espeth, a young transgender man from Norway, © Amnesty International Esben Esther Pirelli Benestad is a transgender sexologist and one of the first persons in Norway who came out as transgender. Esben Esther supports those transgender individuals ereafter denied the whom the Trans Unit has not diagnosed with “transsexualism” and are th 189 “If you are told Amnesty International: possibility of accessing specific health care. Hir not diagnosed as a transsexual by the National Hospital, you have no rights whatsoever, and accept as transsexuals only those who you don’t have a chance of a second opinion... [T]hey followed a specific path, who considered themselves transsexuals, from a very early age. If you are depressed or have another mental health concern, they will not diagnose you as a transsexual... but many trans people ar e [depressed] because they are not feeling 190 [comfortable] with their own body.” 188 Interview with Luca, Oslo, 24 June 2013. 189 This is the gender-neutral pronoun Esben Esther would like to be referred by. 190 Meeting with Esben Eshter Pirelli Benestad, 22 June 2013. Index: EUR O1/001/2014 Amnesty International January 2014

73 The state decides who I am 73 Lack of legal gender recognition for transgender people in Europe Other organizations, including the Harry Benjamin Resource Centre (HBRS), which provides specific support to people who perceive themselves as transsexuals, pointed out that the lack of a second opinion for transgender individuals who, in the views of the Trans Unit, do not fulfill the diagnostic requirements is problematic. The HRBS told Amnesty International that those who are deemed not suitable to be diagnosed could in principle complain to health 191 authorities, but in practice this is not an effective mechanism. In discussions with Amnesty International, other transgender individuals and support groups voiced criticisms based on their experiences with the Trans Unit. Marion Arntzen, who has been providing support to transgender individuals for a number of years, told Amnesty International: “ I’ve been accompanying several trans women to their appointments with the gender reassignment ward at the National Hospital. They are met with little understanding or compassion and perceived as dressing as women for fun. I went with a trans woman, Marianne, to her appointments at the National Hospital. She was beautifully dressed and wore make -up. However, the doctors in the gender reassig nment ward called her with the 192 ” male name. She said that transgender people are aware that a specific diagnosis is necessary to access health care and to obtain legal gender recognition but often have Trans Unit. the negative experiences of According to transgender organizations, the Trans Unit applies exclusive criteria when establishing who can be diagnosed with “transsexualism”. Age is one of those criteria. Elderly r people tend to be excluded and according to Esben Esther the average age of transgende people treated by the Trans Unit is lower than the average in other countries. Statistics of the Directorate of Health, an agency under the responsibility of the Ministry of Health and Care 193 show that half of the patients referred annually to th Services, e OUS are aged below 18. 2.5.3 OTHER MEDICAL REQUIREMENTS: HORMONE TREATMENT AND SURGERIES Official statistics on access to health care for transgender people is lacking in Norway. According to the Harry Benjamin Resource Centre (HRBS), the number of referrals to the Trans Unit increased since 2010 and currently amounts to 200 individuals per year. The HBRS emphasized that only half of all the patients referred to the Oslo University Hospital are diagnosed with “transsexualism”. According to the Centre th e explanation for such a low ratio is that general practitioners and/or psychologists refer individuals to the OUS based on 194 very superficial assessments. According to the Health Directorate, 120 transgender individuals are referred each year to the Oslo University Hospitals. Only half of the 60 persons who are over 18 are diagnosed with 195 It implies that the other adults who do not get the diagnosis will not be “transsexualism”. 191 Meeting with the Harry Benjamin Resource Centre, 24 June 2013. 192 Meeting with Marion Arntzen, Head of the Resource Centre for Trans People (Stensveens venner), 23 June 2013. 193 Directorate of Health, Review of the treatment of transsexual and transgender people, 1 October 2012. 194 Ib. 191 195 Ib. 193 Amnesty International January 2014 Index: EUR 01/001/24

74 The state decides who I am 74 74 Lack of legal gender recognition for transgender people in Europe able to access any state-funded health care. Although they can access hormone treatment from their general practitioner, they will not be able to obtain legal gender recognition unless they undergo genital reassignment surgery abroad, at their own expense. Jannicke is a 58-year-old transgender woman. After having concealed her gender identity for many years, she decided to start living as a woman in 1999 when she divorced her partner with whom she had three children. She started hormone treatment in 2001 and she was referred to the OUS Trans Unit in 2007. She was not diagnosed with “transsexualism” but with “other gender identity disorders” (F64.8 in the ICD10) in 2008, after nine consultations with the Trans Unit. It was not until 2009 that she received a letter from the Trans Unit confirming the diagnosis. The Trans Unit clarified that she could have sought treatment abroad but that she could not have accessed state-funded transgender health care in Norway. She was able to contact a surgeon in Thailand where she underwent genital reassignment surgery in 2011. She told Amnesty Intern ational: “ The Hospital [the Trans Unit] tells transgender patients that there is just one kind of approach, which is full gender confirming treatment and sterilization. But sometimes partial treatment is sufficient: for example breast removal or breast implants [depending on the specific case] could be enough and fully satisfactory. However, no such options are offered. They do not take the best interests of the patients into account. During my first appointment, [the staff at the Trans Unit] quickly drew conclusions on the sort of treatment they could offer me. The only option seemed to be castration... I did not feel welcomed or that I was being taken seriously as a transsexual woman... they were always referring to my age, as If I was too old to get treatment [and] I found their final report degrading and offensive... They never referred to me by using the female pronoun although they have always seen me dressed as a woman. ” After undergoing surgery in Thailand, which cost some 90,000 Norwegian Krone (about 10. 500 Euros), Jannicke wrote a letter to the Norwegian Tax Administration, seeking legal recognition of her female gender. She was told that she had to contact the OUS beforehand as they had to certify that the surgery she had undergone in Thailand was the appropriate one for the purposes of legal gender recognition. She got an appointment with the OUS Trans Unit in June 2012, and she finally obtained legal recognition of her female gender in July 2012. Jannicke had changed her name in 2008 and received a new passport with a new picture and her new name. However, the passport entry indicating the sex she was assigned at birth was n not changed until she finally obtained legal recognition of her gender, a process that bega when she started hormone treatment in 2002 and took more than 10 years to complete. According to the current practices, transgender people who are diagnosed with “transsexualism” can access hormone treatment, surgeries and finally genital reassignment surgeries. Access to surgeries, such as breast reduction or enlargement surgery, is made possible only after two years of hormone treatment. Genital reassignment surgery is accessible 6-12 months after those surgeries. Those who are diagnosed with “transsexualism” but are unwilling to undertake genital reassignment surgery resulting in sterilization cannot obtain legal gender recognition, which is the ultimate OUS requirement to allow the national identification number to be changed. Index: EUR O1/001/2014 Amnesty International January 2014

75 The state decides who I am 75 Lack of legal gender recognition for transgender people in Europe 2.5.4 THE STERILIZATION REQUIREMENT For the purpose of changing a national identification number, the Oslo University Hospital must certify to the Norwegian Tax Administration that a “real sex conversion” occurred in cases where genital reassignment surgeries have been performed. These surgeries entail the removal of reproductive organs resulting in irreversible sterilization. Orchidectomy (removal of test es) is practiced routinely in genital reassignment surgeries of male-to -female transgender persons and ophorectomy (removal of ovaries) in the context of genital reassignment surgeries 196 of female-to -male transgender persons. According to Norwegian law, patients should consent to any health care treatment given to them. Information on each specific health treatment is necessary in order for the patient’s 197 Individuals who are aged 25 and above can undergo sterilization consent to be valid. 198 provided they consent to it. Existing research shows that transgender people often do not receive specific information that sterilization is an outcome of genital reassignment surgeries and do not explicitly 199 consent to it. I want Luca opposes the principle of undergoing genital surgery as it is currently practiced: “ my legal gender to be male but I still have the female one. I can in theory obtain recognition of my gender but only if I am sterilized. This is out of question for me and it is not going to happen. ” He also raised concerns about the fact that health treatments for transgender people, including surgeries, are not tailored to individual needs and are often inadequate: “ The treatment is presented as a package solution by the Hospital without consideration for individual wishes. The normative principle for medical staff is that after having taken hormones for a while, you undergo surgeries. They take for granted that you want to go for the whole package of surgeries and they do not ask you questions about that. In June 2013 I got a referral for a gynecological appointment from the Hospital. I did not ask for it. I went to this appointment in October and the doctor told me that the next step would involve removing my ovaries and uterus. I told him I did not want that kind of surgery and that I would have let them know if I changed my mind. 196 The Unit Chief Surgeon of the Department for Plastic and Reconstructive Surgery of the OUS confirmed this in an email communication with Anniken Sørlie. See Anniken Sørlie, The right to gender identity as a human right, Annex 3, p163, http://www.jus.uio.no/ior/forskning/omrader/kvinnerett/publikasjoner/skriftserien/dokumenter/nr-90 -anniken-sorlie.pdf , in Norwegian, accessed 16 December 2013. http://www.ub.uio.no/ujur/ulovdata/lov-19990702-063-eng.pdf 197 Patient Rights Act, No. 63 of 2 July 1999, §4-1, , accessed 13 December 2013. 03-57?q=steriliseringsloven 198 Sterilization Act, § 2, http://lovdata.no/dokument/NL/lov/1977- 06- , in Norwegian, accessed 28 November 2013. Anniken Sørlie, The right to gender identity as a human right, attachment 1, p. 154. According to the survey, 56 per cent of the 199 transgender people who had undergone genital reassignment surgery did not receive specific information about the sterilization procedure. Twenty-seven individuals out of 33 did not give explicit written consent for the sterilization procedure. Amnesty International January 2014 Index: EUR 01/001/24

76 The state decides who I am 76 76 Lack of legal gender recognition for transgender people in Europe I feel like I am deprived of my rights [legal gender recognition] just because I choose to exercise some other rights [refuse medical treatments].” Moreover, according to current practices, transgender people who undergo genital surgeries resulting in irreversible sterilization are not given the possibility by the Trans Unit to preserve etes before undergoing such treatment, although domestic legislation explicitly allows for gam the general possibility to store sperm and also permits the storage of unfertilized oocytes and 200 ovarian tissue in instances where women undergo treatments impairing their fertility. 2.5.5 CONSEQUENCES OF CURRENT PRACTICES 201 for transgender people to fulfill all the criteria to comply with It can take 10 years or more the notion of “real sex conversion”, and thus to qualify for legal gender recognition. All those transgender people who do not fulfill the criteria because they are not diagnosed with “transsexualism” or refuse to undergo surgeries are not able to obtain legal gender recognition . Current practices result in transgender people not having documents that reflect their gender identity, which can expose them to discrimination, harassment or violence. Recent research undertaken by the Centre for Equality, a Norwegian foundation, highlights how little awareness on gender identity there is among health and education professionals, stigma and discrimination experienced by transgender individuals who come out and problems with regard to accessing health care. Until January 2014, only those transgender individuals who had undergone a full gender reassignment process with the OUS were protected against discrimination on the gender 202 New anti-discrimination legislation, which entered into force in January 2014, ground. explicitly provides protection against discrimination on grounds of gender identity and gender 203 However, it is unclear whether this new legislation will have any impact on expression. 204 current problematic practices with regard to legal gender recognition. 200 Act of 5 December 2003 No. 100 relating to the application of biotechnology in human medicine, §2-11 and 2-17, http://www.ub.uio.no/ujur/ulovdata/lov- 20031205-100-eng.pdf, accessed 13 December 2013. Janneke van der Ros, Transgendered citizenship in the Norwegian welfare state: the non-recognition of diversities, or gender equality for all kinds of gender? 201 http://www.ecpg-barcelona.com/sites/default/files/Transgendered%20citizenship%20in%20the%20Norwegian%20welfare%20state%20Barcelona%20jvdr.pdf , accessed 7 January 2014. See also: letter from the Ministry for Health and Care Services to the Directorate of Health, 13 September 2013. 202 Gender Equality Act (likestillingsloven), adopted in 1978 and revised in 2013, http://lovdata.no/dokument/NL/lov/2013-06 -21-59, in Norwegian, accessed 13 December 2013. 203 Law on prohibition against discrimination on the basis of sexual orientation, gender identity and gender expression (diskriminering loven om seksuell orienteering), http://lovdata.no/dokument/NL/lov/2013-06 -21-58, accessed 13 December 2013. In the past, the Equality and Anti-Discrimination Ombudsperson received a complaint about the discriminatory nature of the current practices from 204 a transgender person who wanted to obtain legal gender recognition without undergoing surgeries. The Ombudsperson found that this case was beyond the remit of her competences under the previous Gender Equality Act, Case 13/289. Meeting with the Equality and Anti-discrimination Ombudsperson, Index: EUR O1/001/2014 Amnesty International January 2014

77 The state decides who I am 77 Lack of legal gender recognition for transgender people in Europe Representatives of the Ministry for Children, Equality and Social Inclusion told Amnesty International that these issues were not discussed at all in the context of the political debate 205 that led to the adoption of the law. 2.5.6 OPPORTUNITIES FOR CHANGING LAWS AND PRACTICES Norway violates the rights of transgender people to attain the highest standard of health and to be free from inhuman, cruel and degrading treatments by requiring them to undergo unnecessary medical treatments, including the removal of their reproductive organs, in order to obtain legal recognition of their gender. The lengthy procedure to obtain legal gender recognition and the fact that transgender people who are not diagnosed with “transsexualism” cannot receive legal recognition of their gender unless they undergo treatments abroad and at their own expense, violate their rights to private and family life and to recognition before the law. There is broad agreement among transgender organizations and other civil society organizations that the current practices on legal gender recognition have to be reformed. In particular, there is a wide consensus that undergoing surgeries resulting in sterilization should not be a precondition to obtain legal gender recognition, irrespective of whether or not some transgender people may seek those surgeries. Policymakers are engaged in discussions on reforming the current framework applicable to legal gender recognition. The Ministry for Health and Care Services has tasked the Directorate of Health with putting forward proposals on access to health care and legal gender recognition for transgender individuals. On 1 October 2012, the Directorate of Health published a review of the treatment of transsexual and transgender people. In this context, it recommended the establishment of a mechanism for transgender individuals to get a second opinion if the OUS does not consider they have fulfilled the diagnostic criteria. Although the Directorate of Health recommended clarifying the interpretation given to the concept of “real sex conversion”, it highlighted that t applicable to “patients diagnosed with sterilization was part of the medical treatmen transsexualism”. On this basis, the Directorate emphasized that the safeguards included in the Sterilization Act do not apply to transgender individuals, as the material scope of the Act does not cover instances where sterilization is considered a treatment or an intervention 206 allowed by other laws. Transgender organizations and other civil society organizations, including Amnesty International, criticized these conclusions. The Ministry of Health and Care Services has recently tasked the Directorate of Health to set up a multidisciplinary expert group to review the practices on legal gender recognition , focusing on the sterilization requirement, and to develop recommendations within one year from its appointment. The Directorate of Health is also charged with establishing a complaint 24 June 2013. 205 Meeting with the Ministry for Children, Equality and Social Inclusion, 21 June 2013. 206 Sterilization Act, §1. Amnesty International January 2014 Index: EUR 01/001/24

78 The state decides who I am 78 78 Lack of legal gender recognition for transgender people in Europe mechanism to which transgender people who are denied health services from the OUS can 207 apply. The Directorate of Health has established an expert group, composed of health professionals, legal experts and representative of transgender organizations. The group is tasked to develop recommendations on legal gender recognition and access to health care for transgender people by 31 January 2015. , © Kristine Bue /Skeiv . The banner reads “ Stop forced sterilisation ” , March 2012 Demonstration against sterilisation in Norway Ungdom Letter from the Ministry for Health and Care Services to the Directorate of Health, 13 September 2013. 207 Index: EUR O1/001/2014 Amnesty International January 2014

79 The state decides who I am 79 Lack of legal gender recognition for transgender people in Europe 2.6 OTHER COUNTRIES 2.6.1 BELGIUM “When you are transgender, you have to justify yourself and explain everything, all the time. Some trans activists may want to d o that, and it’s their right, but other trans people prefer to preserve their privacy, and that’s their right also... The problem is that the society always expects you to be cisgender and straight. The law on legal gender recognition is very has to be amended. All its transphobic aspects have to be dropped to allow important... and trans people to be who they want to be, without asking them to get a psychiatric diagnosis or to be sterilized, for instance... otherwise the law itself gives people, the society, an excuse for being transphobic too.” Ely, a transgender person living in Brussels Transgender people in Belgium cannot change their legal gender and thus obtain documents that reflect their gender identity, unless they undergo a lengthy procedure that can take three years or more. It entails mandatory psychiatric diagnosis and compliance with a whole set of “real life test”, genital reassignment medical requirements including hormone treatment, a surgeries and sterilization. In fact, according to current legislation, transgender people cannot obtain legal gender recognition unless they are rendered incapable of reproduction. Psychiatric diagnosis and hormone treatment are also, according to current laws and practices, mandatory requirements transgender people must fulfil if they want to change their first name. 2.6.1.1 CURRENT LAW AND PRACTICES In Belgium every new birth of a child has to be registered at the municipal level within 15 days from the birth. Personal information of citizens and residents, including their legal gender, established on the basis of the sex assigned at birth, is recorded in population 208 registers and on birth certificates. Official documents such as passports and identity cards are issued on the basis of this information and include the legal gender and gender markers associated with it. 209 According to Belgian law in force since 2007, the legal gender can be modified only in instances where there is an irreversible conviction to belong to the “opposite” gender and where medical treatments have been undertaken. This implies that medical evidence has to be produced when a request for legal gender recognition is submitted to the civil registrar. Such evidence must include two declarations, one from a psychiatrist and another from a surgeon, certifying that the person who requested legal gender recognition has the “intimate, constant and irreversible” conviction to belong to the “opposite” gender, has undergone gender reassignment surgeries and is incapable of reproduction. The current practices 208 Law on population registries, identity cards, cards of foreigners and residence documents (Loi relative aux registres de la population, aux cartes d'identité, aux cartes d'étranger et aux documents de séjour), 1991, http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=1991071931&table_name=loi , in French, accessed 20 December 2013. Loi relative à la transsexualité, 10 May 2007, Article 2, §2, 209 , in French, accessed 11 December 2013. http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&table_name=loi&cn=2007051055 Amnesty International January 2014 Index: EUR 01/001/24

80 The state decides who I am 80 80 Lack of legal gender recognition for transgender people in Europe followed by health professionals in Belgium imply that transgender people have to wait several years before obtaining legal gender recognition. Transgender people can access health treatments in two hospitals, in Ghent and Liège, where multidisciplinary teams have been established. They can only undergo gender reassignment surgeries in Ghent. It takes an average of six months to establish the psychiatric diagnosis at the Ghent University Hospital (hereafter Ghent Gender Clinic), although this can vary on a 210 The diagnostic period typically involves usually six sessions with mental case by case basis. health professionals distributed on a monthly basis. According to çavaria, an LGBTI organization located in the Dutch-speaking part of Belgium, and Genres Pluriels, a trans organization based in Brussels, it may take up to one year to establish the psychiatric . 211 diagnosis at the Gent Gender Clinic Hormone treatment is accessible after the diagnosis, although the waiting period can be as much as two months depending on the availability of the endocrinologist. Hormone treatment is also accessible to minors. According to current practices, a “real - life” experience is associated with hormone treatment. Transgender people are expected to start living in their 212 preferred gender socially and professionally as soon as they start the treatment. Genital reassignment surgeries are available for male-to -female transgender people one year -male transgender people. In the after hormone treatment, and two years after for female-to case of the latter, the waiting period is longer due to the limited availability of surgeons. Genital reassignment surgery is always practiced in a way that implies the removal of 213 reproductive organs, which results in irreversible sterilization. As a practice, genital 214 reassignment surgeries are not available to minors. Although minors can submit a request 215 they cannot in practice obtain legal to obtain legal gender recognition to the civil registrar, recognition before they come of age and undergo genital reassignment surgery. Transgender people can change their name only insofar as they can produce two declarations, 210 Phone interview with a representative of the Ghent Gender Clinic, 17 December 2013. 211 Email communication with çavaria, 18 December 2013; Interview with Max Nissol of Genres Pluriels, 16 December 2013. 212 The hormone treatment usually entails two phases. During the first phase, the male hormones are inactivated for transgender women, and the female hormones are inactivated for transgender men. Nine months later substitution therapy is started, at which time trans women are give female hormones and trans men are given male an assessment of the “real - life experience”. See UZ Ghent, Transsexualiteit, Info voor Patiënt, 2009, p12, hormones. The second phase starts only after http://www.uzgent.be/wps/wcm/connect/da71110048cd74279bd6bb1b2ddb3c83/UZ_A5_Transseks+(herdruk)v4.pdf?MOD=AJPERES , in Dutch, accessed 20 December 2013. 213 Phone interview with a representative of the Ghent Gender Clinic, 17 December 2013. 214 Health practitioners in Belgium follow the recommendations of the WPATH according to which genital surgeries should not be carried out until patients reach the legal age of majority. WPATH Standards of Care, Version 7, p. 21, http://www.wpath.org/uploaded_files/140/files/Standards%20of%20Care,%20V7%20Full%20Book.pdf Loi relative à la transsexualité, 10 May 2013, Art. 2, “Le mineur transsexuel non émancipé qui fait une déclaration d 215 e sa conviction est assisté de sa mère, de son père ou de son représentant légal”. Index: EUR O1/001/2014 Amnesty International January 2014

81 The state decides who I am 81 Lack of legal gender recognition for transgender people in Europe one from a psychiatrist and another from an endocrinologist. These declarations must certify that the person in question has an “intimate, constant and irreversible” conviction to belong 216 to the “opposite” gender, and ha s undergone or is undergoing hormone treatment. 2.6.1.2 CONSEQUENCES OF CURRENT PRACTICES AND DISCRIMINATION Current laws and practices expose transgender people to a life of everyday situations in which they are forced to produce documents bearing a name and gender markers that do not correspond to their gender identity and expression. This can have the effect of increasing discrimination against them. Eefje is a 25-year-old transgender woman who is undergoing the gender reassignment procedure at the Ghent Gender Clinic. She is still legally a male and would be willing to access all the health treatments available at the Clinic, including genital . reassignment surgery Eefje shared with Amnesty International the negative Eefje van der Meer, a 25 - year - old transgender woman from Belgium, © Eefje van d er Meer experiences she faced as a result of the mismatch between her legal gender and her gender identity and expression: “ I trained to become an assistant cook on a course managed by the VDAB [the public loyment agency in Flanders]. At the end of the course, I had to complete a traineeship emp and the VDAB traineeship director told me I would have to apply using my legal name and gender. I felt obliged to do so because I wanted to successfully complete the course and find a job. That had a great psychological impact on me because during the course I was constantly given orders by using my male name. Once I completed the traineeship, the manager told me that I could have been employed but that other colleagues were against it . I was finally not employed officially because I did not satisfy because I was transgender ” educational requirements. Ely told Amnesty International: “ You need your electronic identity card for many things... [and] you can’t use your preferred name if you haven’t changed it... The result is that you are confronted constantly with situations where you must use a name that you don’t want ” because it does not reflect your gender. Some trans individuals do not want to comply with the requirements prescribed by the law on legal gender recognition. Max, who is accessing hormone treatment privately, but has 216 Loi relative à la transsexualité, Article 9. Amnesty International January 2014 Index: EUR 01/001/24

82 The state decides who I am 82 82 Lack of legal gender recognition for transgender people in Europe changed neither his name, nor his legal gender, stated; “ I refuse to be bound to a law that violates human rights. I would like to change my name but I don’t want the state to interfere with my private life to the extent of asking me to see a psychiatrist just to change my name. That amounts to policing genders .” reflect ing their gender identity can be Transgender people who do not have documents discrimination, harassment or violence , which remain a serious problem in exposed to Belgium . According to the FRA -LGBT survey, 48 per cent of the transgender individuals surveyed in Belgium said they had been discriminated against or harassed the year ahead of the survey. Respondents cited acts of discrimination when looking for jobs (47 per cent), in the workplace (19 per cent) and by educational personnel (15 per cent). Moreover, 41 per cent said they had been targeted with violence or threats of violence in the five years before the survey. Of those who had been targeted, 46 per cent said that the last episode of violence that they had experienced in the year ahead of the study was motivated by their gender identity. The current Belgian legislation on equality between women and men prohibits discrimination on grounds of sex in several areas including employment, access to goods and services, 217 The law also protects against discrimination on grounds of sex health and social security. 218 change. introducing sex change in the Criminal Code as a ground on which a hate crime A new law 219 On 28 November 2013, the can be perpetrated entered into force in January 2013. government proposed to extend the scope of the law on equality between women and men to 220 include the grounds of gender identity and expression. 2.6.1.3 OPPORTUNITIES FOR CHANGING LAWS AND PRACTICES Belgium violates the rights of transgender people to the highest attainable standard of health and to be free from inhuman, cruel and degrading treatment by requiring them to undergo unnecessary medical treatments, including sterilization, in order to obtain legal recognition of their gender. The lengthy procedure required to obtain legal gender recognition and the fact that it is dependent on requirements that some trans people may not want to comply with violates their rights to private life and to recognition before the law. The current exclusion of minors from being able to obtain legal gender recognition because they cannot fulfil the medical requirements prescribed by the law is also at odds with international standards 217 Loi tendant à lutter contre la discrimination entre hommes et femmes, 10 May 2007, Art. 5, http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2007051036&table_name=loi 218 Loi du 10 Mai 2007, Art. 4.2. 219 Loi modifiant l’article 405 quater du Code pénal et l’article 2 de la loi du 4 octobre 1867 sur les circonstances atténuantes, 14 January 2013, http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2013011406&table_name=loi , in French, accessed, 10 January 2014.. 220 At the time of writing (January 2014), the text was not yet available. See, press release of the Belgian Minister of Interior and for Equal Opportunities, d’identité -la-loi-anti-discrimination-aux-critères- http://www.milquet.belgium.be/fr/une-meilleure-protection-grâce-à- l’extension -de Index: EUR O1/001/2014 Amnesty International January 2014

83 The state decides who I am 83 Lack of legal gender recognition for transgender people in Europe obliging states to take into account the best interests of the child in all matters concerning children’s lives. In January 2013, the Belgian government adopted a comprehensive roadmap to combat 221 discrimination on grounds of sexual orientation and gender identity. The roadmap includes a commitment to review the 2007 law on legal gender recognition. However, in December 2013, it was still unclear when the current government intends to present a proposal to amend the law. 2.6.2 GERMANY Transgender people in Germany cannot change their name and obtain legal recognition of diagnosis and undergo a “real - life experience” and their gender unless they get a psychiatric an expert assessment ordered by the courts. Discrimination and hate crime against transgender people remain widespread in Germany. According to the FRA-LGBT survey, as many as 54 per cent of the transgender individuals surveyed in Germany perceived they had been discriminated against in the year ahead the research. Thirty-two per cent of respondents said they had been discriminated against when looking for a job, and 24 per cent cited discrimination by school or university personnel. Fifty-two per cent said they had been targeted or threatened with physical or sexual violence during the five years prior to the survey, and 58 per cent believed that the last episode of 222 violence or threat of violence against them was motivated by their gender identity. 223 provides for protection against German anti-discrimination legislation, in force since 2006, 224 discrimination on grounds of “sexual identity” ( ). sexuelle Identität 221 Plan d’action interfédéral contre les violences homophobes et transphobes, 31 Janvier 2013, Chapter 2, Actions 1 and 4, http://igvm- iefh.belgium.be/fr/binaries/Plan%20d'Action%20Interfédéral%20Violences%20Homophobes%20Transphobes_tcm337-224389.pdf 222 Some German trans organizations collect cases of discrimination and violence. See, for example TransInterQueer, Daily Routine: Experiences of discrimination on the grounds of gender identity and gender expression in access to and supply of goods and services and employment in Germany, Case collection 2008-February 2011, http://www.ilga-europe.org/content/download/19569/125868/version/1/file/Annex+2+-+Germany+-+Collection+of+cases+of+discrimination+against+trans+people+- +February+2011.pdf , accessed 27 November 2013. According to the Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights, Germany collects disaggregated data on hate crimes perpetrated on grounds of gender identity. However, there is no specific legislation on hate crime in Germany. The hate motive can be taken into account in the sentence but this is at the discretion of 222 individual judges, who base judgement on Article 46.2 of the German Criminal Code. Cases of hate crime perpetrated against transgender individuals as reported by Transgender Europe to the OSCE Office for Democratic Institutions and Human Rights (ODIHR), Hate crimes in the OSCE Region: incidents and responses, Annual http://tandis.odihr.pl/hcr2012 , accessed 27 November 2013. Report, 2012, p. 81, 223 Allgemeines Gleichbehandlungsgesetz, §1, http://www.gesetze-im -internet.de/agg/index.html , in German, accessed 27 November 2013. 224 No legal definition of the protected ground is given. The non-binding Parliamentary explanatory report provides some guidance in this respect, stating that “ sexual should be construed as including all LGBTI people. ” identity Amnesty International January 2014 Index: EUR 01/001/24

84 The state decides who I am 84 84 Lack of legal gender recognition for transgender people in Europe Antidiskriminierungsstelle des Bundes ), which deals with The German Equality body ( discrimination against transgender individuals, has on several occasions recommended changes to enhance legal protection against discrimination on grounds of gender identity and 225 expression. 2.6.2.1 CURRENT LAWS AND PRACTICES In Germany, all information relating to a newborn child, including the sex, has to be 226 registered in the birth registry within one week after the birth and is indicated on the birth 227 certificate. The sex of a newborn child is assigned at birth by medical staff. According to recent amendments of the Personal Status Law, entered into force on 1 November 2013, the information on sex can be omitted in the birth registry if a newborn child cannot be 228 unambiguously assigned as either male or female. Transgender individuals have been able to change their forename and obtain legal recognition of their gender since 1980, when the Law on the Changing of First Names and the 229 Establishment of Sex Status in Special Cases (hereafter TSG) was introduced. This law allows transgender people to change their name (informally referred to as “minor solution”) or their legal gender (informally referred to as “major solution”). Although the German Constitutional Court, in numerous judgments from 1982 until 2011, has struck down several problematic requirements originally laid down in the TSG, get a transgender people who wish to change their name and gender are still required to 230 psychiatric diagnosis, based on the International Classification of Diseases (ICD -10), 231 which Germany has adopted. Experts appointed by c ourt s must confirm the diagnosis 225 In 2010, the German Equality Body published an expert opinion on discrimination of transgender people in the workplace. It recommended a review of the procedures for transgender individuals to change their name and legal gender, in particular the psychiatric diagnosis and the expert assessments. An English summary of the expert opinion, “Discrimination against trans*persons, especially in the world of work”, can be acces sed here: http://www.antidiskriminierungsstelle.de/SharedDocs/Downloads/EN/publikationen/factsheet_engl_Benachteiligung_TransPersonen.html?nn=4194106 , accessed 27 November 2013. 226 Personal Status Law (Personenstandgesetz/PStG), §21. 227 PStG, article 59. 228 PStG, §22.3, See Chapter 1.5 229 Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen – Transsexuellengesetz (TSG), http://www.gesetze- im-internet.de/tsg/BJNR016540980.html , in German, accessed 26 November 2013. 230 See Annex II. 231 Internationale statistische Klassifikation der Krankheiten und verwandter Gesundheitsprobleme, 10. Revision German Modification, Version 2013, F 64 Störungen http://www.dimdi.de/static/de/klassi/icd-10 -gm/kodesuche/onlinefassungen/htmlgm2013/block-f60-f69.htm der Geschlechtidentität, Index: EUR O1/001/2014 Amnesty International January 2014

85 The state decides who I am 85 Lack of legal gender recognition for transgender people in Europe gen recognition or to change their name. when transgender people apply to obtain legal der The requirements found to be unconstitutional by the Constitutional Court, including single status, sterilizations and medical treatments, are no longer app lied but new legislation on legal gender recognition has still to be adopted. The relatively lengthy procedures required for transgender people to legally change their name and their gender result in the violation of their right to private life. 2.6.2.2 CHANGE OF NAME: THE MINOR SOLUTION 232 The “minor solution” allows for transgender people to change their forename, provided the applicant can fulfil the following three main conditions:  Provide sufficient proof that he/she feels to belong to the opposite gender;  Demonstrate in a believable manner that he/she has had the compulsion to live according to his/her perceived gender for a minimum period of three years;  Provide certification that the urge to live in the opposite gender is probably irreversible, base d on his/her “transsexual imprinting or conditioning”, which is unlikely to change again.  ) hand down decisions on name change on the basis of the Amtsgericht District courts ( opinion of two court appointed experts who are tasked with assessing whether all requirements are fulfilled. The experts are usually selected from among mental health professionals and can be either psychologists or psychiatrists. According to transgender organizations that Amnesty International spoke to, the courts and the experts sometimes require transgender people to have already lived for three years in their preferred gender when they apply for a name change, although the law refers only to the “compulsion” of living in the preferred gender and not an actual experience. Therefor e, the TSG is in practice interpreted as requiring transgender people to undergo a “real life Alltagstest ) before being allowed to change their name. Such interpretation experience” ( 233 s, as well as by partially stems from the standards of care applied by health professional 234 insurance companies, which require a “real life test” as a precondition to access specific transgender health care. This alignment on standards between the health care sector and the courts is not surprising since the court experts are themselves health professionals. Transgender organizations are very critical of the role played by experts. They believe that the 232 TSG, §1. 233 The German standards of transgender care require a one- year “real life test” before accessing hormone treatment and one year and a half “real life test” to access reassignment surgeries. Standards der Behandlung und Begutachtung von Transsexuellen, www.bernhard- breuer.de/download/StandardsTS.pdf , accessed 26 November 2013. 234 The Association of Health Insurers developed a set of binding guidelines to assess state coverage of transgender health care. These guidelines suggest a period of 18 months of “real life test” before a tran sgender person can access any medical treatment including hormone therapy, Anlagen zur Begutachtungsanleitung Geschlechtsangleichende Maßnahmen bei Transsexualität (MDS) , http://www.trans- ident.de/index.php?option=com_joomdoc&task=cat_view&gid=63&limit=50&limitstart=0&order=hits&dir=ASC&Itemid=5 , accessed 26 November 2013. Amnesty International January 2014 Index: EUR 01/001/24

86 The state decides who I am 86 86 Lack of legal gender recognition for transgender people in Europe 235 criteria on which experts rely are not transparent, and note that transgender individuals intrusive and unneces sary practices followed by experts, including physical often reported examinations or queries about their sexuality. According to a study on living conditions of transgender people in the German state of North - Rhine Westphalia, a third of transgender men and a quarter of transgender women surveyed were physically examined by court - appointed experts who were psychiatrics and thus not qualified to perform gynaecological examinations. A fifth of transgender men and 15 per cent of transgender women found the physical examinat ion degrading. Seventy -four, 33 and 37 per cent of transgender men and by experts about their 41, 33 and 37 per cent of transgender women were respectively asked 236 sexual orientation, sexual practices and sexual fantasies. The “minor solution” enables trans gender people to change their name but not the gender on their birth certificate. The Passport Act allows transgender individuals to obtain a passport reflecting their preferred gender, if they have already changed their name in accordance with 237 olution. However, the procedure to change the forename can be relatively the minor s lengthy, lasting anywhere between six months and two years and expensive with costs ranging 238 between €500 and €2,000. Alternative identity cards indicating the preferred forename can be issued to transgender people who have not yet changed their name but who are 239 already undergoing the psychiatric assessment . GAL GENDER: THE MAJO 2.6.2.3 CHANGE OF LE R SOLUTION The “major solution” allows for transgender individuals to obtain full lega l recognition, which entails the amendments of the information on their gender included in the birth registry, on 240 the birth certificate and on any other documents. To that purpose, the TSG requires transgender individuals to “feel the compulsion to belong to the opposite gender” for a minimum period of three years, and a “probably irreversible transsexual imprinting” that has 235 An opinion shared also by Annette Güldenring, a transgender psychiatrist at the WestkündenKlinikum in Heide who also serves as a court appointed expert in proceedings relating to name change an d legal gender recognition. Amnesty International’s researchers met her on 4 November 2012. 236 Wiebke Fuchs,Dr.Dan Christian Ghattas, Deborah Reinert, Charlotte Widmann. Studie zur lebenssituationen von Transsexuellen in Nordrhein-Westfalen, pp. 84-85, in German,www.lsvd.de/fileadmin/pics/Dokumente/TSG/Studie_NRW.pdf, accessed 8 January 2013. Passport Act (Passgesetz), Section 4, reads: “The indicated sex shall be the same as that entered in the official civil regis ter. In derogation from the 237 third sentence, a passport applicant whose forename(s) have been changed by court decision in accordance with Section 1 of the Act on Transsexuals shall be issued a passport in which the indicated sex differs from the one entered in the official register at birth.” – C. Balzer, A. Suess, Transrespect versus Transphobia Worldwide, TvT research project country results: Germany Elaborated version, April 2010, available at 238 http://www.transrespect-transphobia.org/en/countries/germany-1/germany-2.htm . 239 German identity cards do not mention the gender, Act on Identity Cards and Electronic Identification (Personalausweisgesetz), Section 5, http://www.gesetze-im - internet.de/englisch_pauswg/englisch_pauswg.html#p0041 , accessed 26 November 2013. However, an identity card bearing a name and a picture that are not consistent with the appearance of the holder can be problematic. The German Society for Transidentity and Intersexuality (DGTI) issues alternative identity cards under , accessed 26 an agreement with the Ministry of Interior. Further information (in German), http://www.dgti.org/index.php?option=com_content&view=article&id=10 November 2013. TSG, §8. 240 Index: EUR O1/001/2014 Amnesty International January 2014

87 The state decides who I am 87 Lack of legal gender recognition for transgender people in Europe to be certified by two court-appointed experts and confirmed by the decision of a court. As is the case with regard to the “minor solution”, courts and experts interpret the conditions laid down by the TSG for legal gender recognition as requiring transgender people to have already lived in their preferred gender for three years before seeking legal recognition of their gender. Three further conditions were originally foreseen by the TSG to access the “major solution”: single status, incapacity to reproduce and having undergone surgery to change “external sexual characteristics so that the person’s appearance approaches that of the other gender”. In 2008, the Federal Constitutional Court found that it was unconstitutional to require transgender people who sought legal gender recognition to divorce from their partners, without providing them with any alternative to continue their partnership in an equally secured form. The Court emphasized that forcing spouses to divorce went against the very structural characteristic of marriage, which is meant to be a long-lasting commitment deserving constitutional protection. The Court left it to legislators to decide on the solution to 241 address the unconstitutional aspect of the single-status requirement enshrined in the TSG. In 2011, the Court found that the irreversible surgery clause and the incapacity to reproduce 242 were unconstitutional. The Court highlighted that requiring transgender individuals to undergo genital surgeries that lead to infertility in order to provide evidence of the stability and irreversibility of the perceptions of themselves in the other gender, was unreasonable. However, the Court left open the possibility for legislators to establish what other criteria or 243 evidence should be provided to that purpose. On 17 July 2009, following- up on the Constitutional Court’s judgment, the Federal Ministry of Justice declared in the Federal Gazette ( Bundesgesetzblatt ) that the section of the TSG establishing the non-marriage clause (§8.1.2) was deemed as not applicable until a new law 244 could be entered into force. Following up on the 2011 judgment, the sections of the TSG laying down the requirements pertaining to the incapacity to reproduce and the obligation to undergo medical treatments (§8.1.3 and §8.1.4) were also deemed inapplicable. 241 Federal Constitutional Court, BVerfG 121, 175. 27.05.2008, Judgment on the non-marriage clause. http://www.bundesverfassungsgericht.de/entscheidungen/rs20110111_1bvr329507.html , Federal Constitutional Court, BVerfG, 1 BvR 3295/07, 11.01.2011, 242 accessed 26 November 2013. In a 2005 judgement, the Court had already found that “an operative intervention as a precondition for the change of gender is increasingly regarded as problematic or no longer tenable among experts.” BVerfG, 1 BvL 3/03, Judgment of 6 December 2005, http://www.bverfg.de/entscheidungen/ls20051206_1bvl000303.html , accessed 26 November 2013. 243 BVerfG, 1 BvR 3295/07 (11.01.2011), para63. 244 Bundesgesetzblatt Jahrgang 2009, Teil 1, Nr. 43, on 22 July 2009, p1978, Gesetz zur Aenderung des Transsexuellengesetzes (Transsexuellengesetz- TAG-ÄndG) from 17 July 2009, available at, Änderungsgesetz – http://www.bgbl.de/Xaver/text.xav?bk=Bundesanzeiger_BGBl&start=%2F%2F*%5B%40attr_id%3D'bgbl109043.pdf'%5D&wc=1&skin=WC Index: EUR 01/001/24 Amnesty International January 2014

88 The state decides who I am 88 88 Lack of legal gender recognition for transgender people in Europe As a result of the case law of the Constitutional Court, the conditions currently required to acc ess the minor solution and the major solution are very similar. Trans*genious Pride 2013 in Berlin, ©Richard Koehler Index: EUR O1/001/2014 Amnesty International January 2014

89 The state decides who I am 89 Lack of legal gender recognition for transgender people in Europe 2.6.2.4 OPPORTUNITIE AND PRACTICES S FOR CHANGING LAWS Although the Constitutional Court has struck down some of the requirements for obtaining that had res legal gender recognition ulted in the violations of human rights of transgender people – including the blanket age res triction, the single status the reassignment surgeries and sterilization – current practices remain problematic. In particular, the expert assessment required by t he courts can lead to the violation of the right of transgender people to be free from degrading treatment. Moreover, the practice according to which a “real life test” is required for transgender people who wish to change their name and legal gender, viol ates their right to private and family life as it exposes them to situations in which they must constantly produce documents in their everyday life that are at odd with their appearances. Although surgeries are no longer required to obtain legal gender rec ognition , other medical treatments, including hormone treatment, may be required by the courts as a precondition to legal gender recognition . As in all the other countries, transgender people and organizations in Germany consider the requirement of a psych iatric diagnosis to obtain legal gender recognition to be degrading and stigmatizing. The 2009 governmental coalition agreement between the conservatives (CDU CSU) and the - 245 liberals (FDP) included a point concerning the revision of the TSG. ral draft Although seve Bundestag laws were introduced into the German Federal Parliament ( ) by different political parties during the previous legislature, none of the proposals were adopted before the 246 parliamentary elections held on 22 September 2013. intersex organizations established a civil society Transgender and led working group in 2011, - which drafted a position paper on the reform of the TSG. It included a call for the abolition of the court proceedings and in particular the requirement to u ndergo expert assess ment in . 247 . instances where transgender people seek legal change of their name and gender The governmental coalition agreement between the conservatives (CDU, CSU) and the social democrats (SPD), signed on 27 November 2013, includes only a general reference to the situation of transgender and intersex people and no specific commitment to reforming the . 248 current law and practices. http://www.cdu.de/sites/default/files/media/dokumente/091026-koalitionsvertrag-cducsu-fdp.pdf, in 245 Koalitionsvertrag zwischen CDU, CSU und FDP. p108 German, accessed 26 November 2013. 246 For instance, in 2010, the Bündnis 90/Die Grünen (The Greens), introduced a proposal for legal gender recognition to be obtained by simply submitting a declaration to the Civil Registry and without undergoing any diagnosis, treatment or expertise. See, Draft Law on the Change of Forenames and the Recognition of Gender Identity, http://dip21.bundestag.de/dip21/btd/17/022/1702211.pdf , accessed 2 November 2013. , accessed 26 November 2013. 247 The full proposal (in German) is accessible here: www.tsgreform.de Deutschlands Zukunft gestalten, Koalitionsvertrag zwischen CDU, CSU und SPD, p.105 248 Amnesty International January 2014 Index: EUR 01/001/24

90 The state decides who I am 90 90 Lack of legal gender recognition for transgender people in Europe 3. CONCLUSIONS AND RECOMMENDATIONS This report highlights the variety of human rights violations experienced by transgender people when they wish to change their legal gender. Across Europe, even where laws and practices exist to allow transgender people to obtain documents reflecting their gender identity, these procedures are inadequate and, for transgender people, violate the rights to private and family life, to recognition before the law, to highest attainable standard of health and to be free from cruel, inhuman and degrading treatments without discrimination on grounds of gender identity and expression. Regrettably, many of these laws and practices on legal gender recognition are still based on stereotypical norms of masculinity and femininity, which result in discrimination against transgender people. States must counteract all discriminatory practices stemming from gender-based stereotypes. Amnesty International recommends: TO ALL GOVERNMENTS  Allow individuals to change their legal name and gender, including the gender markers on official documents issued by the state, through a quick, accessible, and transparent d in accordance with the individual’s sense of gender identity; procedure an Ensure that non-state institutions and bodies put in place quick, accessible and  transparent procedures aimed at providing transgender people with documents, such as diplomas or other education certificates, that reflect their gender identity;  Ensure that all information concerning changes of legal name and gender is kept confidential; such information should not generally be accessible to third parties without the explicit consent of the persons concerned; Remove gender identity from the classification of mental diseases and reclassify aspects  relevant to the provision of health care in a non-stigmatizing health category;  Abolish requirements to undergo psychiatric assessment and receive a diagnosis for obtaining legal gender recognition;  Abolish any medical requirement, including surgeries and sterilization, in relation to legal gender recognition; Abolish any requirement of single status as a prerequisite to obtain legal gender  recognition; Index: EUR O1/001/2014 Amnesty International January 2014

91 The state decides who I am 91 Lack of legal gender recognition for transgender people in Europe  Abolish blanket age restrictions to legal gender recognition procedures and ensure that legal recognition is accessible to minors, taking into account the child’s freely expressed ; views regarding their own best interests, in light of their evolving capacities  Provide explicit legal protection against discrimination on grounds of gender identity and expression in all areas;  Ensure that gender identity and expression are explicitly included as grounds for prosecution of hate crimes;  Ensure that medical practices, especially the provision of medical care for transgender people, do not perpetuate stereotypical notions of masculinity and femininity ;  Take steps to raise public awareness of transgender identities and the discrimination experienced by transgender people. TO THE EUROPEAN UNIO N Ensure that protection against discrimination on grounds of gender identity and  expression is provided to all transgender people irrespective of whether they have undertaken, wish to undertake or are undertaking gender reassignment, in line with international human rights standards according to which gender identity is a protected ground of discrimination. To this aim, gender identity and expression should be included as explicit grounds in all existing and future EU legislation on combating discrimination;  In the context of the development of the new strategic guidelines in the area of freedom, security and justice, aimed at shaping the EU policies after 2014, the EU should ensure that transgender people can enjoy their rights to privacy and family life, to be free from ill and degrading treatment and to enjoy the highest attainable standards of health, particularly in the context of legal gender recognition procedures. The protection of these d be part of a comprehensive EU policy which addresses discrimination, rights shoul violence and other human rights violations experienced by transgender people. TO THE GOVERNMENT OF DENMARK Amend current laws and practices, in particular the Guidelines on Population  Registration (no. 9273 of 14 June 2013), paragraph 2.1.3, and the Guidelines on Passports (no. 1337 of 28 November 2013), paragraph 5, with the aim of allowing transgender people to obtain a new CPR number on the basis of which documents reflecting their gender identity can be issued without the necessity to undergo psychiatric assessment and receive a psychiatric diagnosis or any other medical requirement and through a quick, transparent and accessible procedure; Amend the Health Act no. 913 of 13 July 2013 with the aim of abolishing the  sterilization requirement for transgender people wishing to obtain legal recognition of their gender; Amnesty International January 2014 Index: EUR 01/001/24

92 The state decides who I am 92 92 Lack of legal gender recognition for transgender people in Europe  Remove the requirement that transgender individuals receive a psychiatric diagnosis and undergo psychiatric assessment and receive a psychiatric diagnosis or medical treatment as a precondition for legal gender recognition. Remove transgender identities from the national classification of diseases and ensure that transgender people can access the health treatments they wish on the basis of their informed consent;  Amend the Act on Names, paragraph 13.2, and the Regulation on Names (no. 1324 of 27 November 2013) with the aim of allowing transgender people to change their names without the necessity of undergoing psychiatric assessment and receiving a psychiatric diagnosis and through a quick, transparent and accessible procedure; TO THE GOVERNMENT OF FINLAND  Amend current laws and practices, in particular the Act on Legal Recognition of the Gender of Transsexuals (Trans Act, no. 563/2002) and the Decree 1053/2002 with the aim of allowing transgender people to obtain a new personal identity code on the basis of which official documents reflecting their gender identity can be issued through a quick, transparent and accessible procedure;  Abolish the single status requirement, the sterilization requirement and the “real life test” laid out in the Trans Act and the Decree 1053/2002;  Amend the Trans Act to ensure that minors can access legal gender recognition on the basis of their best interests and according to their evolving capacities;  Remove the requirement that transgender individuals receive a psychiatric diagnosis and undergo psychiatric assessment or medical treatment as a precondition for legal gender recognition. Remove transgender identities from the national classification of diseases and ensure that transgender people can access the health treatments they wish on the basis of their informed consent;  Allow transgender people to change their names without requiring them to undergo psychiatric assessment and receive a psychiatric diagnosis and through a quick, transparent and accessible procedure. FRANCE TO THE GOVERNMENT OF  Introduce a legislative proposal within the Parliament aimed at establishing a framework allowing transgender people to obtain legal recognition of their gender and to change their names through a quick, transparent and accessible procedure; Follow-up on the opinion of the National Advisory Commission on Human Rights by  ensuring that the legislative proposal mentioned above does not make legal gender recognition dependent on any medical requirements such as psychiatric diagnosis, hormone treatment or surgeries; Index: EUR O1/001/2014 Amnesty International January 2014

93 The state decides who I am 93 Lack of legal gender recognition for transgender people in Europe  Ensure that such a legislative proposal does not require transgender people to undergo any additional expert assessment as a condition to obtain legal recognition of their gender; TO THE GOVERNMENT OF IRELAND  Ensure that transgender people can obtain legal recognition of their gender without further delays and through a quick, transparent and accessible procedure;  Ensure that the Gender Recognition Bill will not require transgender people to be single or to have undergone any specific health treatment to obtain legal gender recognition . Moreover, ensure that children will be given the possibility to obtain legal gender recognition taking into account their best interests and their evolving capacities; TO THE GOVERNMENT OF NORWAY  Amend current laws and practices by introducing a legislative proposal that sets out a framework allowing transgender people to obtain legal recognition of their gender through a quick, accessible and transparent procedure;  Ensure that such framework will abolish the sterilization requirement as well as any other medical requirement currently enforced in instances where transgender people seek legal gender recognition;  Ensure that legal gender recognition is accessible to everyone without the need to undergo psychiatric assessment and to receive psychiatric diagnosis and that transgender identities are removed from the national classification of mental diseases. TO THE GOVERNMENT OF BELGIUM  Amend the current laws and practices, in particular the Law on Transsexuality of 10 May 2007, with the aim of allowing transgender people to obtain legal recognition of their gender and to change their names through a quick, transparent and accessible procedure;  Abolish the sterilization and surgery requirements included in the Law on Transsexuality of 10 May 2007;  Remove the requirement that transgender individuals receive psychiatric diagnosis or undergo medical treatment as a precondition for legal gender recognition. Remove transgender identities from the national classification of diseases and ensure that transgender people can access the health treatments they wish on the basis of their informed consent; Ensure that legal gender recognition can be effectively accessed by minors on the basis  of their best interests and by taking into account of their evolving capacities. Amnesty International January 2014 Index: EUR 01/001/24

94 The state decides who I am 94 94 Lack of legal gender recognition for transgender people in Europe TO THE GOVERNMENT OF GERMANY  Introducing a legislative proposal aimed at amending the Law on Transsexuality (TSG) adopted in 1980 as well as current practices with the aim of allowing transgender people to obtain legal recognition of their gender and to change their names through a quick, accessible and transparent procedure that do not require them to receive a psychiatric diagnosis and undergo expert assessments, “real life test” or specific health treatments;  Remove transgender identities from the national classification of diseases and ensure that transgender people can access the health treatments they wish on the basis of their informed consent. Index: EUR O1/001/2014 Amnesty International January 2014

95 The state decides who I am 95 Lack of legal gender recognition for transgender people in Europe APPENDIX I: HUMAN RI GHTS STANDARDS f In order to protect, promote and fulfill the human rights of transgender people, and in view o the obligation to comply with international and regional human rights standards, states should undertake the following actions: DISCRIMINATION AND HATE CRIME Human rights bases Actions for governments Gender identity is a protected characteristic 1. Provide explicit protection against tion on grounds of gender discrimina . Gender expression under human rights law identity and expression in all areas of life should be considered as a protected - ended anti - characteristic under open discrimination provisions included in the major international and regional human rights instruments (ICCPR, Articles 2 and Provide explicit protection against hate 2. 26, ICESCR Article 2.2, CRC Article 2.1, crimes perpetrated on grounds of gender CHR Article 14 and Protocol 12) E identity and expression UN Committee for Economic, Social and General Comment Cultural Rights (CESCR), no. 20, para32 UN Committee for the Elimination of All Forms of Discrimination against Women (CEDAW) General Recommendation no. 249 28 the UN High Commissioner for Report of Human Rights on discrimination on grounds of sexual orientation and gender identity, 249 CEDAW/C/GC/28, 16 December 2010, para18. Amnesty International January 2014 Index: EUR 01/001/24

96 The state decides who I am 96 96 Lack of legal gender recognition for transgender people in Europe 250 Recommendations a, b, e European Court of Human Rights (ECtHR) judgment in P V v Spain (gender identity is 251 covered by art. 14 of the ECHR) Council of Europe Committee of Ministers, Recommendation CM/Rec (2010) 5, 252 recommendations 1, 2, 3, Appendix I.A 253 EU Directive 2012/29, recitals 9, 17 European Court of Justice case law on 254 discrimination on grounds of sex LEGAL GENDER RECOGNITION Actio ns for governments Human rights bases to recognition before the law Right 3. Allow individuals to change their legal name and gender markers on all official documents issued by the state International Covenant on Civil and Political Rights (ICCPR), Article 16 Convention on the Elimination of all Forms 250 A/HRC/19/41, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC- 19-41_en.pdf 251 P.V. v Spain, judgment of 30/11/2010, para30, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{%22dmdocnumber%22:[%22877607%22],%22itemid%22:[%22001-101943%22 , in French, accessed 10 December 2013. 252 https://wcd.coe.int/ViewDoc.jsp?id=1606669 253 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:315:0057:01:EN:HTML , accessed 10 December 2013. 254 The Court found in three cases that discrimination against transgender people who have undergone, are undergoing or intend to undergo gender reassignmen t might amount to discrimination on grounds of sex. CJEU, Case C-13/94 P. v S. and Cornwall County Council, 1996, ECR I-2143; CJEU, Case C-117/01 K.B. v National Health Service Pensions Agency and Secretary of State for Health, 2004, ECR I-541; CJEU, Case C-423/04 Sarah Margaret Richards v Secretary of State for Work and Pensions, 2006, ECR I-3585. Index: EUR O1/001/2014 Amnesty International January 2014

97 The state decides who I am 97 Lack of legal gender recognition for transgender people in Europe of Violence against Women (CEDAW), Article 15 Yogjakarta Principle 6: the right to recognition before the law Right to privacy/Right to the respect for private life ICCPR, Article 17 ECHR, Article 8 - : law ECtHR case B. v France, 25 March 1992 Goodwin v UK, 11 July 2002 I. v the Un ited Kingdom, 11 July 2002 Grant v the United Kingdom, 23 May 2006 L. v Lithuania, 11 September 2007 Yogy akarta Principle 6: the right to privacy Council of Europe Rec CM (2010) 5, para22 Right to the highest attainable standard of Abolish any medical requirement in 4. health relation to legal gender recognition ncluding surgeries and sterilization i conomic, Social and UN Covenant on E Cultural Rights (CESCR), Art. 12 CESCR General Comment 14 Right to be free from degrading treatment ICCPR, Article 7 UN Rapporteur on tort ure and other cruel, inhuman or degrading treatment or punishment , paras78 and 88 Amnesty International January 2014 Index: EUR 01/001/24

98 The state decides who I am 98 98 Lack of legal gender recognition for transgender people in Europe ECHR, Article 3 Council o f Europe Commissioner for Human Rights, Issue Paper on Human Rights and 255 Gender Identity Parliamentary Assembly of the Council of Europe, Resolution on forced sterilizations 256 and castrations : protection from Yogjakarta Principle 18 medical abuse rta Principle 10: the right to Yogjaka m Torture and Cruel, Inhuman freedom fro Degrading Treatment or Punishment or Right to marry and to found a family 5. Abolish the single status as a legal gender prerequisite to obtain recognition ICCPR, Article 23 ECHR, Article 12 Right to private and family life ICCPR, Article 17 255 Human Rights and Gender Identity, CommDH/Issue Paper (2009) 2, para3.2.1 https://wcd.coe.int/ViewDoc.jsp?id=1476365#P108_22710 , accessed 9 December 2013. 256 Resolution 1945 (2013), 26 June 2013, Putting an end to coerced sterilizations and castrations, , accessed 9 December 2013. http://assembly.coe.int/ASP/Doc/XrefViewPDF.asp?FileID=19984&Language=EN Index: EUR O1/001/2014 Amnesty International January 2014

99 The state decides who I am 99 Lack of legal gender recognition for transgender people in Europe e 8 ECHR, Articl Council of Europe Commissioner for Human Rights, Issue Paper Human Rights and Gender Identity, para3.2.2 Yogjakarta Principle 6: the right to privacy Yogjakarta Principle 24: the right to found a family legal gender recognition 6. Make Convention on the Rights of the Child procedures accessible to minors as 3.1: best interest of the child Article (CRC), by taking into account appropriate and their best interests and their evolving capacities child to p CRC Article 8: right of the reserve her identity the child to CRC Article 12.1: right of express her views UN Committee on the Rights of the Child (UNCRC), General Comment 12: the right of 257 be heard the child to UNCRC, General Comment 14: the right of the child to have his or her best interest 258 taken as a primary consideration http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C- 257 General Comment 12 (2009), para. 85 GC -12.pdf , accessed 10 December 2013. http://www.amnesty.org/en/library/asset/EUR20/003/2013/en/52e09c17-3787-4723-9d4a- 258 General Comment 14 (2013), para. 55, , accessed 10 December 2013. 95bbe546d2cb/eur200032013en.pdf Amnesty International January 2014 Index: EUR 01/001/24

100 The state decides who I am 100 100 Lack of legal gender recognition for transgender people in Europe APPENDIX II: INTERNA TIONAL TH SEASES, 10 CLASSIFICATION OF DI VERSION (ICD -10) CHAPTER V MENTAL AND BEHAVIOUR AL DISORDERS (F00 -F99) DISORDERS OF ADULT PERSONALITY AND B EHAVIO R (F60 -F69) This block includes a variety of conditions and behaviour patterns of clinical significance which tend to be persistent and appear to be the expression of the individual's characteristic lifestyle and mode of relating to himself or herself and others. Some of these conditions and patterns of behaviour emerge early in the course of individual development, as a result of both constitutional factors and social experience, while others are acquired later in life. Specific personality disorders (F60.-), mixed and other personality disorders (F61.-), and enduring personality changes (F62.-) are deeply ingrained and enduring behaviour patterns, manifesting as inflexible responses to a broad range of personal and social situations. They represent extreme or significant deviations from the way in which the average individual in a given culture perceives, thinks, feels and, particularly, relates to others. Such behaviour patterns tend to be stable and to encompass multiple domains of behaviour and psychological functioning. They are frequently, but not always, associated with various degrees of subjective distress and problems of social performance. GENDER IDENTITY DISORDERS TRANSSEXUALISM F64.0 A desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or inappropriateness of, one's anatomic sex, and a wish to have surgery and hormonal treatment to make one's body as congruent as possible with one's preferred sex. F64.1 DUAL-ROLE TRANSVESTISM The wearing of clothes of the opposite sex for part of the individual's existence in order to enjoy the temporary experience of membership of the opposite sex, but without any desire for a more permanent sex change or associated surgical reassignment, and without sexual excitement accompanying the cross-dressing. Gender identity disorder of adolescence or adulthood, non-transsexual type Index: EUR O1/001/2014 Amnesty International January 2014

101 The state decides who I am 101 Lack of legal gender recognition for transgender people in Europe Excl.:fetishistic transvestism ( F65.1 ) F64.2 GENDER IDENTITY DISORDER OF CHILDHOOD A disorder, usually first manifest during early childhood (and always well before puberty), characterized by a persistent and intense distress about assigned sex, together with a desire to be (or insistence that one is) of the other sex. There is a persistent preoccupation with the dress and activities of the opposite sex and repudiation of the individual's own sex. The diagnosis requires a profound disturbance of the normal gender identity; mere tomboyishness in girls or girlish behaviour in boys is not sufficient. Gender identity disorders in individuals who have reached or are entering puberty should not be classified here but in F66.-. ) F66.1 Excl.:egodystonic sexual orientation ( sexual maturation disorder ( F66.0 ) F64.8 OTHER GENDER IDENTITY DISORDERS F64.9 GENDER IDENTITY DISORDER, UNSPECIFIED Amnesty International January 2014 Index: EUR 01/001/24

102 WHETHER IN A HIGH-PROFILE CONFLICT OR A FORGOTTEN CORNER OF THE AMNESTY INTERNATIONAL GLOBE, CAMPAIGNS FOR JUSTICE, FREEDOM AND DIGNITY FOR ALL AND SEEKS TO GALVANIZE PUBLIC SUPPORT TO BUILD A BETTER WORLD WHAT CAN YOU DO? Activists around the world have shown that it is possible to resist the dangerous forces that are undermining human rights. Be part of this movement. Combat those who peddle fear and hate. ■ Join Amnesty International and become part of a worldwide movement campaigning for an end to human rights violations. Help us make a difference. ■ Make a donation to support Amnesty International’s work. Together we can make our voices heard. ❐ I am interested in receiving further information on becoming a member of Amnesty International name address country email ❐ I wish to make a donation to Amnesty International (donations will be taken in UK£, US$ or €) amount please debit my V isa ❐ Mastercard ❐ number expiry date signature amnesty.org I WANT Please return this form to the Amnesty International office in your country. For Amnesty International offices worldwide: www.amnesty.org/en/worldwide-sites If there is not an Amnesty International office in your country, please return this form to: TO HELP Amnesty International , International Secretariat, Peter Benenson House, 1 Easton Street, London WC1X 0DW, United Kingdom

103 THE STATE DECIDES WHO I AM LACK OF RECOGNITION FOR TRANSGENDER PEOPLE For transgender people, official identity documents reflecting their gender identity are vitally important for the enjoyment of their human rights. They are not only crucial when travelling but also for everyday life, such as enrolling in school, applying for a job, accessing a public library or opening a bank account. This report illustrates the human rights violations experienced by transgender people in Europe when seeking legal gender recognition, which is necessary to obtain documents reflecting their gender identity. Some countries simply do not allow for a change in one’s legal gender. Many others have made the change in one’s legal gender contingent on the fulfillment of invasive requirements, which violate the human rights of transgender people. In highlighting these requirements, including psychiatric diagnosis, medical procedures, such as surgeries and sterilization, and divorce, the report underscores the plight of transgender people who are forced to choose which rights to give up in order to enjoy others. Amnesty International urges governments to ensure that transgender people can enjoy all their human rights irrespective of their gender identity and expression. States should allow transgender people to legally change their gender and their name through a quick, accessible, and transparent procedure without requirements that violate their human rights. Psychiatric diagnosis, medical treatments such as surgeries and sterilization, single status and arbitrary age restrictions should not be required to obtain legal gender recognition. amnesty.org January 2014 Index number: EUR 01/001/2014

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