1 Transgender Rights Helena Pereira de Melo October 2014

2 Agrado (All about my mother, 1999)

3 “They call me Pleasure, because I have always tried to make everyone’s life more pleasant… Aside from being pleasant I am also very authentic. Almond shaped eyes, 80 thousand silicone in lips, forehead, cheeks, hips and ass…the 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: 1. Acquisition of rights 2. 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: a) Transexuals – want to have sex reassignment surgery b) Transgenderists – live in the gender role associated with other sex without wanting to have surgery c) Bigender persons – identify as both man and women d) Drag queens – men who dress in women’s clothes e) Kings – women who dress in men’s clothes

12 Is the drag queen discriminated?

13 Transgendered people: a) Pathologised as being “mentally ill”; b) Forced to divorced or to be sterilized; c) Cannot marry and found a family; d) Dismissed from their work; e) Rejected by their family; f) 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 Chaz’s body rejecting John’s 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: a) destroy the importance of biology; b) be fully identified with one of the poles of the rigid binary system; c) the status of what they fully are after transitioning - men or women.

21

22 The legal relevance of sex – names, coulors, behaviours, expectations…

1. To get married – only with someone from the opposite sex? 1. To get divorced – only men? 2. To paid work – differently paid for the same type of work? 3. To maternity leave – shorter paternity leave? 23

To sexual harassment protection – does it apply to transsexuals? 24

Can she be a killer? 1. Age of retirement – earlier for women? 2. To vote and to be elected 3. To join the army 4. To a fair trial in criminal law – the sensitive and fragile woman… 25

Which are the effects of changing sex?  In a pre-existing marriage – would become a homosexual marriage  In parenthood – 2 mothers or to fathers 26

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

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) 28

Cossey v. The UK (1984) 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. THE APPLICANT: 29

The applicant 1. Wishes to marry, but the UK authorities informed her that: 1. such a marriage would be void, because English law would treat her as a male; 2. she could not be issued with a birth certificate showing her sex as female. 30

 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 31

The ECHR (1990) “ gender reassignment surgery does not result in the acquisition of all the biological characteristics of the other sex” Invoking the UK’s margin of appreciation, the Court found no breach of articles 8 or 12 32

Judge Paul Martens Dissident vote 33  The refusal by the state is cruel  Transsexual = “tragic human being”

B v. France (1992) The applicant: 34  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

B v. France: The applicant : 35  in 1963 and settled in Paris, working in a cabaret under an assumed name  underwent a surgical operation in Morocco in the removal of the external genital organs and the creation of a vaginal cavity

B. v. France:  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 THE APPLICANT: 36

B v. France The Applicant: 37  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

B v. France THE APPLICANT: 38  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.

B v. France The Applicant – Miss B. 39 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.

B v. France The ECHR: 40 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 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.

Christine Godwinn v. The UK (1995) The Applicant: 41 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.

Christine Godwinn v. The UK (1995) The ECHR: 42  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.

Christine Godwinn v. The UK (1995)  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. THE ECHR: 43 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.

44 “ 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”.

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” 45

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,

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 47

The ECJ: Non- discrimination: 48  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

The ECJ: Protects against “sex discrimination” Protects especially post- operative transsexuals and not all transgendered people 49

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 50

International Law: UDHR (1948) ICCPR (1966) ICESR (1966) ECHR (1950) CFREU (2000) 51

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) 52

Rights: 1. To live according to one’s sexual identity 2. To change sex 3. To rectification of the registered sex in the birth certificate and identity documents 1. To change forename in accordance with the new sex 2. To health care. 53

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 54

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 55

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 56

2006 GISBERTA 57

Transsexuals = “gender outlaws”:  Protect against negative discrimination  Adopt affirmative action measures - access to medical and legal formalities The State should: 58

 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… 59