The battle for transgender rights: which human right must I drop?

Asking someone to make a choice between rights is abhorrent. Yet, the harsh reality is that certain transgender people are forced to make such decisions if they wish to achieve legal recognition of their own sense of gender identity. This denies transgender people freedom to be who they want to be, it actively promotes discrimination and sees many European countries (some, but not all of which, are mentioned here) deny the entirety of their citizen’s equality under law.

Let’s start with France. Here, a transgender person is unable to change their legal gender unless they receive a psychiatric diagnosis of “transsexualism” (yes, that’s correct: a transgender person has to be clinically diagnosed before they can even hope to achieve legal equality). Once this diagnosis is given, access to transgender healthcare including hormonal treatments and surgeries is permitted.

Courts in France are unlikely to grant requests for legal gender recognition from transgender people unless their appearance has not been changed irreversibly, which is a process that not all transgender people wish to go through. In some cases, this is seen as a requirement for genital reassignment surgery which results in permanent infertility due to removal of the reproductive organs. So, the choice between rights is stark: enjoy equal recognition under the law or keep your bodily integrity and reproductive rights intact.

Next, Finland. Here, transgender people also receive a psychiatric diagnosis. Only when this is given is access to irreversible sterilization granted, which is mandatory if legal gender recognition is to be achieved.

After being diagnosed with “transsexualism” in 2006 and having undergone all phases required by law to obtain legal gender recognition, Heli, a 49-year old Finnish transgender woman, still cannot change her gender, because she is married and doesn’t want to convert her marriage into a civil partnership. Same-sex marriage is prohibited in Finland, and a change in gender would render Heli’s marriage to her wife of eighteen years, in the harshest possible fashion, legally obsolete. The despicable choice given to Hali is: achieve recognition of her gender or uphold her right to a private life and family.

Shockingly, the European Court of Human Rights ruled against Heli in her attempt to challenge Finnish law after it previously stating that an individual’s ability to obtain recognition of their gender identity is “one of the most basic essentials of self-determination”. It boggles the mind to think that such an influential and forward thinking body can be seen as effectively condoning repressive laws against transgender people and appears to advocate a choice between rights.

In Norway, we see the same dismal picture. John Jeanette Solstad Remø (who features this year’s Write for Rights 2014 campaign) does not want to go through the process of being giving with a psychiatric diagnosis, does not want to undergo irreversible sterilization and does not want gender reassignment surgery. She wishes to retain her right to a private life. However, this is consistently violated on a daily basis as her identity documents still indicate she is male. Therefore, when she presents them at a hotel, the library or a pharmacy, she faces lengthy and probing questions about her gender appearance and identity. All John Jeanette asks is to “…be seen as the person that I feel on the inside”.

Progress is being made, but slowly. The Norwegian Equality and Anti-Discrimination Ombud has concluded that the Ministry of Health’s decision to deny John Jeanette to change her legal gender unless she meets the intrusive and unwanted medical requirements breaches the law on discrimination on the basis of sexual orientation. Unfortunately, the Ombud’s statements are not legally binding, meaning that we must continue to campaign for John Jeanette’s right to a private life and to be free of cruel, inhuman and degrading treatment.

We can hope that such campaigning will result in countries taking similar steps to Denmark, which on 1 September scrapped the requirement for transgender people to undergo psychiatric and physical medical procedures before they could change their legal gender identity. Argentina is the only other country in the world where a similar model exists.

To me, this means it’s time we gave these countries a choice: continue to unjustly repress the transgender community with discriminatory and odious laws, or allow everyone to be equal under the eyes of the law and live in happiness knowing they are free to be who they truly are. The answer should be obvious. 

Ryan Stalley is one of Amnesty's LGBTI Network.