Transgender Rights

1
Transgender Rights

• Helena Pereira de Melo
• Helena.melo_at_fd.unl.pt
• October 2014

2
Agrado (All about my mother, 1999)
3
They call me Pleasure, because I have always
tried to make everyones life more pleasant
Aside from being pleasant I am also very
authentic. Almond shaped eyes, 80 thousand
silicone in lips, forehead, cheeks, hips and
assthe liter costs 6000 pesetas It costs me a
lot to be authentic. But we must not be cheap in
regards to the way we look. Because a woman is
more authentic the more she looks like what she
has dreamed for herself.
4
David Bell

• All citizenship is sexual citizenship

5
Sex legal prerequisite

• Acquisition of rights
• Sex anti-discrimination law

6
Law

• Does not define sex nor gender
• Influenced by the vision of man and woman and
  the heterosexual family model.

7
Mainstream law

• Based upon the heterosexual and male privilege
• Hetronormativity - originates inequality in
  family life, political participation rights,
  access to welfare entitlements and employment
  conditions

8
Sara Crawley

• Gender is serious business. If you have broken
  the rules, you will know about it

9
dissident sexual citizenship
10
Transgender movement, 1980

• People should be free to change, either
  temporarily or permanently, the sex type to which
  they were assigned since infancy

11
Members

1. Transexuals want to have sex reassignment
   surgery
2. Transgenderists live in the gender role
   associated with other sex without wanting to have
   surgery
3. Bigender persons identify as both man and women
4. Drag queens men who dress in womens clothes
5. Kings women who dress in mens clothes

12
Is the drag queen discriminated?
13
Transgendered people

1. Pathologised as being mentally ill
2. Forced to divorced or to be sterilized
3. Cannot marry and found a family
4. Dismissed from their work
5. Rejected by their family
6. Victims of hate crimes

14
Transsexuals
15
Transsexualism

• Gender identity does not align with the sex
  assigned at birth
• Through medical intervention they want to alter
  their external physical appearance to match their
  internal gender identity
• Mental illness - WHO

16
Gender dysphoria

• A person identifies completely with the
  gender that the body does not biologically
  represent.

17
Gender confirming procedure

• Hormonal and surgical treatment
• Male-to-female transwoman
• Female-to-male - transman

18
John and Chaz have virtually the same DNA and a
penis transplant from John to Chaz will be a
success.  The danger of Chazs body rejecting
Johns penis is virtually zero.  Dean Traherne
MD, North Dakota University of Medicine
19
S. Kessler

• the transsexual movement reproduces and rebels
  against gender dualism and biocentrism

20
The transsexual wants to

1. destroy the importance of biology
2. be fully identified with one of the poles of the
   rigid binary system
3. the status of what they fully are after
   transitioning - men or women.

21
(No Transcript)
22
The legal relevance of sex names, coulors,
behaviours, expectations
23
Sex linked with human rights

• To get married only with someone from the
  opposite sex?
• To get divorced only men?
• To paid work differently paid for the same type
  of work?
• To maternity leave shorter paternity leave?

24
To sexual harassment protection does it apply
to transsexuals?
25
Can she be a killer?

• Age of retirement earlier for women?
• To vote and to be elected
• To join the army
• To a fair trial in criminal law the sensitive
  and fragile woman

26
Which are the effects of changing sex?

• In a pre-existing marriage would become a
  homosexual marriage
• In parenthood 2 mothers or to fathers

27
Transsexual husband annuls marriage and enters
into civil partnership with wife to keep pension
benefits (UK, 2008)
28
ECHR

• Rees v. The UK (1986)
• Cossey v. The UK (1984)
• B v. France (1987)
• Christine Goodwin v. The UK (1995)
• L V. The UK (1994)
• X, Y and Zv. The UK, 1997
• Sheffield and Horsham v. The UK (1998)

29
Cossey v. The UK (1984)

• THE APPLICANT

1. a transsexual who was registered at birth as
   being of the male sex.
2. assumed a woman's name and adopted a female role
   for all purposes.
3. underwent gender reassignment surgery, after
   which, according to the medical report, she has
   lived a full life as a female.

30
The applicant

• Wishes to marry, but the UK authorities informed
  her that
• such a marriage would be void, because English
  law would treat her as a male
• she could not be issued with a birth certificate
  showing her sex as female.

31

• The applicant complained of her inability to
  claim full recognition of her changed status and
  alleged a violation of Art. 8 (right to respect
  for private life) and Art. 12 (right to marry) of
  the ECHR

32
The ECHR (1990)

• gender reassignment surgery does not result in
  the acquisition of all the biological
  characteristics of the other sex
• Invoking the UKs margin of appreciation, the
  Court found no breach of articles 8 or 12

33
Judge Paul Martens

• Dissident vote

• The refusal by the state is cruel
• Transsexual tragic human being

34
B v. France (1992)

• The applicant

• was born in 1935 at Sidi Bel Abbès, Algeria
• was registered with the civil status registrer as
  of male sex, with the names Norbert Antoine
• adopted female behavior from a early age

35
B v. France

• in 1963 and settled in Paris, working in a
  cabaret under an assumed name
• underwent a surgical operation in Morocco in
  1972 - the removal of the external genital organs
  and the creation of a vaginal cavity

• The applicant

36
B. v. France

• THE APPLICANT

• is now living with a man whom she met before
  her operation
• is no longer working on the stage
• is unable to find employment due to the hostile
  reactions she arouses

37
B v. France

• The Applicant

• Asked the Court of Libourne to order the
  rectification of her birth certificate she would
  bear the names Lynne Antoinette
• Her application was not granted because of the
  principle of the inalienability of the status of
  individuals

38
B v. France

• THE APPLICANT

• Appealed to the Court de Cassation - even after
  the hormone treatment and surgical operation
  which she underwent she continued to show the
  characteristics of a person of male sex.

39
B v. France

• complained of the refusal of the French
  authorities to
• recognise her true sexual identity
• to allow her to change her civil status
• relying on Articles 3, 8 and 12 of the ECHR.

• The Applicant Miss B.

40
B v. France

• it is undeniable that attitudes have changed,
  science has progressed and increasing importance
  is attached to the problem of transsexualism
• in the light of the relevant studies carried out
  in this field, there still remains uncertainty as
  to the essential nature of transsexualism and the
  legitimacy of surgical intervention in such cases
  

• The ECHR

• there is as yet no sufficiently broad consensus
  between the member States of the Council of
  Europe to persuade the Court to reach opposite
  conclusions to those in its Cossey judgment.

41
Christine Godwinn v. The UK (1995)

• The Applicant

•  Is a UK citizen born in 1937 and is a
  post-operative male to female transsexual

• Though she married a woman and they had 4
  children, her conviction was that her brain sex
  did not fit her body
• Until 1990 she dressed as a man for work but as
  a woman in her free time
•  She claims that between 1990 and 1992 she was
  sexually harassed by colleagues at work
• In 1997 the Contributions Agency informed her
  that she would be ineligible for a State pension
  at the age of 60, the age of entitlement for
  women in the UK.

42
Christine Godwinn v. The UK (1995)

• signals its consciousness of the serious problems
  facing transsexuals and stresses the importance
  of keeping the need for appropriate legal
  measures in this area
• where a State authorizes and finances the
  treatment alleviating the condition of a
  transsexual, it appears illogical to refuse to
  recognize the legal implications of the result to
  which the treatment leads.

• The ECHR

43
Christine Godwinn v. The UK (1995)

• THE ECHR

• It is not apparent that the chromosomal element
  must inevitably take on decisive significance for
  the purposes of legal attribution of gender
  identity for transsexuals.
• is not persuaded that the state of medical
  science provides any determining argument as
  regards the legal recognition of transsexuals.

• attaches less importance to the lack of evidence
  of a common European approach to the resolution
  of the legal problems posed, than to the clear
  and uncontested evidence of a continuing
  international trend in favor of increased social
  acceptance of transsexuals and of legal
  recognition of the new sexual identity of
  post-operative transsexuals.

44
Article 14 ECHR

• The enjoyment of the rights and freedoms set
  forth in the Convention shall be secured without
  discrimination on any ground such as sex, race,
  color, language, religion, political or other
  opinion, natural or social origin, association
  with a national minority, property, birth or
  other status.

45
The ECHR

• In the wording of Art. 14 there is no explicit
  category such as gender identity
• The ECHR has refused to interpret extensively the
  sex category embracing transsexuals.
• Art. 14 refers to other status

46
What about the European Court of Justice?

• P v. S and Cornwall County Council, 1996
• KB v. National Health Service Pensions Agency,
  2004
• Richards v. Secretary of State for Work and
  Pensions, 2006

47
The ECJ

• The prohibition of discrimination on the grounds
  of sex (Council Directive 2006/54/EC) includes
  discrimination on the grounds of gender
  reassignment
• Such discrimination is based on the fact that a
  person belongs to a particular sex

48
The ECJ

• Non-discrimination

• On the principle of equal treatment for men and
  women as regards access to employment
• On the payment of (survival, retirement) pensions
• On the exercise of the right to marry

49
The ECJ

• Protects against sex discrimination
• Protects especially post-operative transsexuals
  and not all transgendered people

50
Rights

1. Right to life
2. Right to the protection of private and family
   life
3. Right to marry and to found a family
4. Right to health
5. Right to free development of personality

51
International Law

• UDHR (1948)
• ICCPR (1966)
• ICESR (1966)
• ECHR (1950)
• CFREU (2000)

52
Parliamentary Assembly

• Recommendation on the Condition of Transsexuals
  (29 July 1989)
• Resolution recommending all member states to
  recognize basic rights to transsexuals (12
  September 1989)

53
Rights

• To live according to ones sexual identity
• To change sex
• To rectification of the registered sex in the
  birth certificate and
• identity documents
• To change forename in accordance with the new sex
• To health care.

54
Right to health

1. Psychiatric diagnosis of transsexualism
2. Psychotherapeutic assistance before and after the
   surgery
3. Information on the change of sex
4. Hormone treatment
5. Clinical trial in living the role of the new sex
   for 1 year
6. Surgery

55
The EU States national health funding scheme

1. Phalloplasty
2. Psychotherapy
3. Hormone replacement therapy
4. Hair removal
5. Breast augmentation
6. Bilateral mastectomies
7. Vaginoplasty

56
Problems - transsexuals

• Wait years until they are diagnosed
• Are diagnosed as being mentally ill
• Waiting lists for surgeries
• Humiliated by medical practitioners
• Not well protected against hate crimes

57
2006

• GISBERTA

58
Transsexuals gender outlaws

• Protect against negative discrimination
• Adopt affirmative action measures - access to
  medical and legal formalities

• The State should

59

• Women and men have rights not because they are
  gendered beings, but because they are human
  beings
• The target is to make sex a feature of the
  citizen no more relevant than being left-handed