The design and lived experience of legal gender recognition procedures across the EU

AuthorDirectorate-General for Justice and Consumers (European Commission), ICF
Pages109-172
Legal gender recognition in the EU: the journeys of trans people towards full equality
June 2020
109
PART II THE DESIGN AND LIVED EXPERIENCE OF
LEGAL GENDER RECOGNITION PROCEDURES ACROSS
THE EU
Part I of this report explored the situation of trans people within different areas of
society. Part II takes a different focus and considers the national systems that exist
across the EU to enable trans people to change their legal gender. It explores the formal
requirements that exist in law, the degree to which these are accessible to trans people,
the lived experiences of those who decide to go through them, and the consequences
for those who cannot access these procedures.
6 Legal requirements for getting your gender marker
recognised across the European Union
This chapter presents and compares the legal requirements (as of 2019) to change one’s
gender marker across the Member States of the EU. It considers wa ys in which the
requirements differ in each country, with some countries having simpler p rocedures in
place and others having more cumbersome or intrusive requirements, such as medical
conditions or obligations to appear before a judge. It is important context for
understanding why procedures in some countries are more accessible than others.
6.1 Legal differences across the EU
Legal Gender Recognition (LGR) process(es) allow individuals to change their first name
and gender marker in their administrative records so that official registers and their
documents, including identity documents, birth or civil status certificates, match their
gender (usually female or male, with few countries allowing for a non-binary marker)101.
Figure 28. Support for the ability to change civil documents to match a person’s gender
identity, 2019102
In 2019, on average more than half of the
individuals living in the EU agreed that transgender
persons should be able to change thei r civil
documents to match their gender identity. However,
almost one-third of respondents do not ( see Figure
28), and the levels of acceptance are much lower in
some countries, particularly in Bulgaria, Hungary,
Romania and Slovakia.
101 Some individuals may not be able to access a legal gender marker that matches gender, most
commonly those with non-binary identities.
102 Source: 2019 Eurobarometer on Di scrimination in the EU. The question asked: ‘Do you think
that transgender persons should be able to change the ir civil documents to match their inner
gender identity?’ Base: All Eurobarometer respondents (n=27,438).
59%
29%
12%
Yes No Don't know
Legal gender recognition in the EU: the journeys of trans people towards full equality
June 2020
110
Figure 29. Whether the general public agree with Legal Gender Recognition103
6.2 What are the legal requirements to obtain LGR across the EU?
All EU Member States and the UK allow for LGR of transgender individuals or hav e
permitted individuals to be recognised in accordance with their gender identity.
However, the requirements set out in national law vary widely. Legal practices for
recognition of gender tend to be a combination of complex leg al and m edical
requirements, with the border between the two often blurred (Hammarberg, 2009). The
requirements range from administrative formalities reflecting transgender persons’ right
to self-determination to intrusive medical requirements, such as sterilisation. Legal
requirements can be categorised as follows:
Self-determination requirements in volving self-declaration of one’s identity via a
written statement, declaration or request with a competent authority;
Procedural requirements;
Medical requirements.
Requirements linked to the relationship and family situation of the applicant;
Time requirements;
Age requirements;
Not having citizenship in the country of residence also be a formal barrier to accessing
LGR, as discussed in more depth in Section 7.2.3.
Each category results in transgender people having to fulfil requirements, provide
certain types of evidence or undergo certain processes in order to access LGR. The
requirements often reflect the national approach to allowing transgender people to have
their g ender recognised. Some requirements reflect the self-determination approach,
where transgender people are those best placed to identify their own gender. Other
procedures take a more paternalistic approach, where the state (through courts, or
other bodies) are seen as best placed to assess a person’s gender, or the pathologising
approach, with trans identities viewed in medicalised terms and medical experts thus
seen as the best placed to determine gender. A snapshot of what each type of
requirement ma y entail is presented below. Further information in relation to human
rights standards and LGR is available in Annex 5.
6.2.1 Self-determination
An LGR procedure based on self-determination has been advocated by the Parliamentary
Assembly of the Council of Europe (PACE) Resolution and Yogyakarta Principles (PACE,
103 Source: Eurobarometer on Discrimination in the EU (2019). The question asked: Do you think
that transgender persons should be able to change the ir civil documents to match their inner
gender identity?’ Base: All Eurobarometer respondents (n=27,438).
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
EU28
BE
BG
CZ
DK
DE
EE
IE
EL
ES
FR
HR
IT
CY
LV
LT
LU
HU
MT
NL
AT
PL
PT
RO
SI
SK
FI
SE
UK
Yes No Don't know
Legal gender recognition in the EU: the journeys of trans people towards full equality
June 2020
111
2015). This approach is the most respectful of transgender people and reflects the
highest human rights standards (see Annex 5), as well as being the m ost accessible.
Under this type of LGR requirement, applicants may change their legal gender via a
written statement, a declaration or request with a competent authority, such a s the
municipality civil status officer. The procedure does not require mental health diagnosis
or any third-party intervention, compulsory medical intervention, surg ery or
sterilisation, or compulsory divorce.
Six EU Member States have adopted a self-determination approach. Denmark was the
first EU country to implement this procedure in 2014104, followed closely by Malta105 and
Ireland106 in 2015. Belgium107, Luxembourg108 and Portugal109 put similar procedures in
place in their national legislation via recent amendments.
6.2.2 Procedural obligations
International human rights standards are increasingly moving towards the promotion of
a quick and accessible procedure for L GR, as reflected in rulings of the European C ourt
of Human Righ ts (ECtHR)110. Two different types of LGR procedures exist, namely a
judicial and an a dministrative procedure. In both cases, procedures can contravene
human rights standards by being unreasonably lengthy, costly and opaque in their
decision-making.
In countries where the procedure for LGR is not explicitly detailed in the legislation, or
where doubts r emain, the procedure is much longer, a s files are evalu ated on a case -
by-case basis. In Bulgaria, Cyp rus, Lithuania, Latvia, Romania, Italy and Poland, no
legislation establishes the LGR requirements and the procedure is done by the courts.
In two c ountries, the case-law has set cl ear standards (Italy, Poland), while the other
five (Bulgaria, Cyp rus, Lithuania, Latvia, Romania) extend a wide margin of discretion
to the judge. In Poland, a court decision is required for an amendment to the birth
certificate. The jurisprudence has developed into a practice acco rding to wh ich
transgender people file a case to ‘sue’ their parents. If a transgender person has a
spouse and children, it is assumed they also have legal interest in the proceeding and
must thus be indicated as co-de fendants, together with the parents of the transgender
person.
Judicial procedures ar e often more burdensome and costly than administrative
procedures. Even if they may conform to human rights standards currently set by the
ECtHR (accessibility, transparency and length, see Annex 5), they can place transgender
people at a higher risk of discrimination, as they live in a transition phase where they
live as one gender without having their papers in order. This is the case in France, where
the legislative framework adopted in 2016111 reformed access to LGR and eliminated all
medical requirements, while limiting grounds for refusal. A judicial procedure is still
necessary and court approval is required to recognise a gender change.
In Slovakia and Slovenia, LGR is an administrative procedure and its requirements arose
from administrative practice.
104 Amendment Act L182 Denmark, 2014.
105 Gender Identity, Gender Expression and Sex Characteristics Act, 2015.
106 Gender Recognition Act, July 2015.
107 Gender Recognition Act Belgium, 25 June 2017.
108 Loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant
modification du Code civil, 10 August 2018.
109 Portugal Decree (XIII 3 105), July 2018.
110 The ECtHR h eld t hat rigid and long judicial LGR procedures leave transgender individuals
vulnerable and are against the aims of the European Convention on Human Rights (ECHR). ECtHR,
S.V. v. Italy No. 55216/08, para 72.
111 Loi N° 2016-1547 du 18 novembre 2016 de modernisation de la justice du XXIe siècle, JORF
n° 0269.

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