European instruments to help move trans* issues forward Silvan Agius TGEU & STA Capacity Building Seminar Edinburgh, 12 September 2011

Quiz Time! (10 mins)

Answers - Level 1 The Council of Europe is one of the institutions of the European Union. False The Council of Europe addresses some human rights breaches on the ground of gender identity. True The European Union addresses some human rights breaches on the ground of gender identity. True The United Nations addresses some human rights breaches on the ground of gender identity. True International human rights institutions recognise gender identity as a ground of equality (on equal footing to race and sexual orientation). False

Answers - Level 2 (pt.1) Yogyakarta principles Moral Authority Hammarberg: Issue Paper on Gender Identity and Human Rights Moral Authority Gender Recast Directive 2006/54/EC Legislative (Direct) Gender Goods and Services Directive 2004/113/EC Legislative (Direct) European Convention on Human Rights Legislative (After Ratification) European Court of Justice Case-law (e.g. P v. S and Cornwall County Council) Legislative (Direct) European Court of Human Rights Case-law (e.g. Cossey) Legal Principle

Answers - Level 2 (pt.1) Council of Europe Committee of Ministers Sexual Orientation and Gender Identity Recommendations Soft-Law/Moral Authority Council of Europe Parliamentary Assembly Sexual Orientation and Gender Identity Recommendations Soft-Law UN HRC resolution on human rights violations based on sexual orientation and gender identity Soft-Law Universal Declaration on Human Rights (UN) Legislative (After Ratification) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Legislative (After Ratification)

Remarks Express references to gender identity in human rights law are rare and very recent. In spite of this change is possible and we are gaining ground and visibility: UN HRC resolution demands a study on violence and discrimination against LGBT people worldwide (tbd 2012) EU FRA commissioning a study on violence and discrimination against LGBT people within the EU (report 2012) CoE CoM Recommendation on LGBT rights’ implementation will be examined in March 2013 In short there is no room for pessimism for international trans rights activists!

Council of Europe

ECtHR trans rights case-law B v France (1992) right to change name and legal gender Goodwin & I v United Kingdom (2002) right to marry a person of other gender van Kück v Germany (2003) right to fair and proportionate requirement regarding gender reassignment Grant v United Kingdom (2006) right to a pension according to acquired gender L v Lithuania (2007) right to clear gender reassignment procedures ‘transsexuality’ has also been recognised as a free standing ground under Art 14.

Rec. LGBT

CoE CoM Recommendations (intro) The Committee of Ministers is the primary institution of the Council of Europe. In March 2010, the Committee adopted a "Recommendation on measures to combat discrimination based on sexual orientation or gender identity”, which is the first legal instrument in the world dealing specifically with sexual orientation and gender identity discrimination. The Recommendations are not legally binding but they carry a lot of moral authority. All Member States agreed to them, but a number are reluctant to implement them. Monitoring of implementation in March 2013.

CoE CoM Recommendations (overview) Areas covered by the Recommendations: (i) the right to life, security and protection from violence – covering (a)“hate crimes” and other hate-motivated incidents and (b)“hate speech” (ii) freedom of association (iii) freedom of expression and peaceful assembly (iv) the right to respect for private and family life (v) employment (vi) education (vii) health Cont.

CoE CoM Recommendations (overview) (viii) housing; (ix) sports; (x) the right to seek asylum; (xi) national human rights structures; and (xii) discrimination on multiple grounds.

Health Recs.

Recommendation on Health (para. 33) 33. Member States should take appropriate legislative and other measures to ensure that the highest attainable standards of health can be effectively enjoyed without discrimination on grounds of sexual orientation or gender identity; in particular, they should take into account the specific needs of lesbian, gay, bisexual and transgender persons in the development of national health plans including suicide prevention measures, health surveys, medical curricula, training courses and materials, and when monitoring and evaluating the quality of health-care services.

Recommendation on Health (para. 34) 34. Appropriate measures should be taken in order to avoid the classification of homosexuality as an illness, in accordance with the standards of the World Health Organisation.

Recommendation on Health (para. 35) 35. Member states should take appropriate measures to ensure that transgender persons have effective access to appropriate gender reassignment services, including psychological, endocrinological and surgical expertise in the field of transgender health care, without being subjected to unreasonable requirements; no person should be subjected to gender reassignment procedures without his or her consent.

Recommendation on Health (para. 36) 36. Member states should take appropriate legislative and other measures to ensure that any decision limiting the costs covered by health insurances for gender reassignment procedures should be lawful, objective and proportionate.

ILGA-Europe Implementation Guidelines

Recommendation on Health (para. 33) 33. Member States should take appropriate legislative and other measures to ensure that the highest attainable standards of health can be effectively enjoyed without discrimination on grounds of sexual orientation or gender identity; in particular, they should take into account the specific needs of lesbian, gay, bisexual and transgender persons in the development of national health plans including suicide prevention measures, health surveys, medical curricula, training courses and materials, and when monitoring and evaluating the quality of health-care services.

Guideline (pt. 1) Do: (a) the design of national health plans, (b) health surveys, (c) suicide prevention programmes, (d) medical training programmes, (e) training courses and materials, (f) the monitoring and quality assessment of health-care services; take into account specific needs in relation to (i) sexual orientation and/or (ii) gender identity? Do training programmes for health professionals enable them to deliver the highest attainable standard of health-care to all persons, with full respect for (i) sexual orientation and/or (ii) gender identity?

Guideline (pt. 2) Are education, prevention, care and treatment programmes and services in the area of sexual and reproductive health available to LGBT people, and do they respect their needs? Are health professionals and social workers encouraged to create an environment that is reassuring and open to young LGBT persons, for example through information campaigns. Are patients in hospital or otherwise the subject of medical emergencies, free to identify their "next of kin", and are rules on issues regarding "next of kin" applied without discrimination on grounds of (i) sexual orientation and/or gender identity?

Recommendation on Health (para. 34) 34. Appropriate measures should be taken in order to avoid the classification of homosexuality as an illness, in accordance with the standards of the World Health Organisation.

Guidelines Has homosexuality been removed from the national classification of diseases? Have all policy documents, medical textbooks and training materials which may previously have treated homosexuality as a disease been corrected or withdrawn? Are measures in place to ensure that no one is forced to undergo any form of treatment, protocol or medical or psychological test or confined in a medical institution because of their sexual orientation or gender identity?

Recommendation on Health (para. 35) 35. Member states should take appropriate measures to ensure that transgender persons have effective access to appropriate gender reassignment services, including psychological, endocrinological and surgical expertise in the field of transgender health care, without being subjected to unreasonable requirements; no person should be subjected to gender reassignment procedures without his or her consent.

Guidelines Do transgender persons have effective access to appropriate gender reassignment services, including psychological, endocrinological and surgical expertise? If it was the practice to make transgender persons undergo therapy to accept their birth gender, has this practice now been abandoned? Have measures been adopted to ensure that no child has their body irreversibly changed by medical practices designed to impose a gender identity without his or her full, free and informed consent, in accordance with his or her age and maturity?

Recommendation on Health (para. 36) 36. Member states should take appropriate legislative and other measures to ensure that any decision limiting the costs covered by health insurances for gender reassignment procedures should be lawful, objective and proportionate.

Guidelines Where legislation provides for the coverage of necessary health-care costs by public or private social insurance systems, is such coverage for gender reassignment treatment ensured? If yes, is it ensured in a reasonable, non-arbitrary and non- discriminatory manner?

European Union law

P v. S and Cornwall County Council (Case C-13/94)Case C-13/94 P was employed as a general manager of an educational establishment. In 1991, she was taken on as a male employee, but in 1992 intended to undergo gender reassignment and was subsequently dismissed. P complained of sex discrimination to the Industrial Tribunal which in turn referred the case to the ECJ as it considered that the wording of the Equal Treatment Directive allowed for gender to be understood in a wide sense. The European Court of Justice held that the right not to be discriminated against on the grounds of sex cannot be confined simply to discrimination based on the fact that a person is of one or other sex, and may include discrimination arising from the gender reassignment of a person.

Confirmation of P v. S principle The P v. S principle was confirmed twice in the cases of: K.B. vs. National Health Service Pensions Agency (C-117/01)C-117/01 Sarah Margaret Richards v Secretary of State for Work and Pensions (C-423/04)C-423/04 In K.B. the ECJ ruled that the denial of a pension scheme to trans woman who could not marry her male partner breached Art 141 of the EC Treaty. It also established that individuals are protected in their gender role and not only the sex given to them at birth. In Richards a trans woman successfully argued that her pensionable age should be the same as that of other women, and not her birth gender.

Case-law affirmed in Directives ECJ case law confirms that: ‘Sex’ = ‘men and women’ = ‘gender reassignment’ EU Gender Equality Directives cover ‘gender reassignment’ 2004/113/EC Goods and Services Directive (2606 th Council and Commission meeting minutes)minutes 2006/54/EC Gender ‘Recast’ Directive (Recital 3) The protection afforded to transgender people who have not and do not intend to undergo ‘gender reassignment’ procedures remains unclear.

Further reading

Further reading Document Link

Further reading Document Link

Other European partners

European partners and contacts details Fundamental Rights Agency Contact: Matteo Bonini Baraldi Commissioner for Human Rights Contact: Dennis van der Veur EQUINET Contact: Anne Gaspard European Parliament LGBT Intergroup Contact: Bruno Selun

Questions welcome.