What legal protection do trans people have in Europe?

On 31 March 2018, International Transgender Day of Visibility serves as an important reminder of the equality that has yet to be achieved for trans people.
Ted Eytan/CC BY-SA 2.0/Flickr

On 31 March 2018, the world will observe the annual International Transgender Day of Visibility, dedicated to celebrating trans people and raising awareness about discrimination they face worldwide.

In binary (male-female) gender systems, trans people include those who have a different gender identity from what they were assigned at birth, as well as those who wish to portray their gender identity in a different way from the gender they were assigned at birth.

In 2014, Amnesty International published a report, The State Decides Who I Am, which estimated that the European Union (EU) is home to approximately 1.5 million trans people. It also concludes that, while Europe is generally seen as progressive on LGBTI rights, transgender rights still lag behind.

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How does Europe fare?

Rainbow Europe is a data collection of European LGBTI rights compiled by ILGA-Europe, which is the European office of the International Lesbian, Gay, Bisexual, Trans & Intersex Association (ILGA). It features a country ranking for 49 European countries and highlights how the laws and policies of each country impact the lives of LGBTI people. It ranks countries between 0% (gross violations of human rights and discrimination) and 100% (full respect of human rights and equality). In first, second, and third positions are Malta (91.04%), Norway (77.74%) and the UK (75.73%), respectively. In 47th, 48th, and 49th place are Armenia (7.20%), Russia (6.40%), and Azerbaijan (4.70%).

Transgender Europe (TGEU), an organisation which works for the equality of trans people in Europe, compiled a Trans Right Europe Index that reflects legal provisions in gender identity recognition and the legal situation in equality, non-discrimination, asylum, hate crime, and family law for trans people in the 49 European countries.

Protection from violence

In Europe, 29 countries have no hate crime laws, hate speech laws, or policies tackling hatred towards trans people.

Equality and non-discrimination

The Trans Right Europe Index reports that trans people are disproportionately affected by unemployment and suffer from discrimination in public and private spaces. 17 European countries still lack any non-discrimination laws protecting trans people.

Legal gender recognition

Official recognition of a person’s gender identity includes the registered gender and name(s) in public registries and key documents. 44 countries in Europe require a “Gender Identity Disorder” diagnosis/psychological opinion in order to change one’s legal gender recognition.

In 20 European countries, sterilisation is still legally required in order to change the gender of a person in their identity documents.

This number used to be 23, until in April 2017, according to ILGA’s Trans Legal Mapping Report, the European Court of Human Rights found that European countries with compulsory sterilisation as a prerequisite for access to gender recognition procedures, were not in line with their obligations to the European Convention on Human Rights. This sparked a series of law reform processes across the continent such as in France, which removed irreversible sterilisation from the requirements for legal gender recognition.

Other requirements vary between compulsory medical intervention (36 countries), surgical intervention (29 countries), divorce (30 countries), or the exclusion of minors (41 countries).

Conversion therapy

Only 2 European countries prohibit transgender conversion therapy on the grounds of gender identity.

Asylum

Considering that 72 countries in the world still have sexual orientation laws that criminalise same-sex activity, with 8 countries implementing the death penalty and 57 countries issuing up to 14 years in prison, trans people are often forced to seek asylum in Europe. However, only 16 European countries offer international protection on the grounds of gender identity. 15 EU countries offer no international protection for trans refugees and are violating EU law.

Interview with Annick Ecuyer, a trans rights activist in Switzerland

Annick Ecuyer, a Geneva-based trans rights activist provided greater insight into the legal challenges facing trans people in Switzerland.  

“In Switzerland, we still legally must depend on doctors to transition, and we’ve been required to go through a fairly intrusive process to be able to.

“There’s also the issue of changing your personal records. While you can change your first name relatively easily, it’s quite a bit more difficult to legally change your gender. You’re often required to have an irreversible procedure to guarantee that you won’t change your mind. This can be inaccessible for many, and some simply don’t want to.  

“Right now, in Switzerland, there is no legal protection for trans people regarding violence and discrimination. There are no specific laws about protecting our right to privacy when it comes to gender identity. And notably, trans women are not covered under any laws regarding rape, when we’re often victims of sexual violence.”

In the current Swiss criminal law, rape is defined as an act committed by a male against a female and forced sexual acts are subject to lesser minimum penalties. Recently, the Swiss government backed a parliamentary motion in February 2018 to expand its legal definition of rape.

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Global trans rights and small victories

Ecuyer reflects that “In the United States, violence against trans people is getting worse. In France, while everyone now has the legal right to get married, trans people are more targeted in terms of violence. Still, there are many countries that allow people to legally change their genders without first having to consult a doctor. We did have a small victory made in Geneva where now it’s possible for someone to legally change their gender without having surgery. Going on hormones can be considered ‘irreversible’. But that is something that took quite some time and only happened recently.

“Success will involve being able to make our ideas around gender more flexible, when it’s easier to transition, when we can receive services without having to overcome so many obstacles and getting past the gatekeepers. When we end violence and discrimination. People are also scared of what they don’t know and that makes them fearful of trans people. The fact that we’re more visible helps.”

GLAAD, a media monitoring organisation founded by LGBTI people in the U.S. media, published their ‘Tips for Allies of Transgender People’ to provide a starting point for anyone wishing to become a better ally to trans people. Support needs to come not just from within the LGBTI community, because trans rights are human rights, and International Transgender Day of Visibility should serve as a reminder that the fight for equality is far from over.

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GenderHuman RightsUncategorized
Isobel Edwards

Isobel has a bachelor’s degree in Environmental Science and a master’s degree in Emerging Economies and Inclusive Development with a focus on gender from King’s College London. She has worked in various areas of international development including cooperation and development for the EU in China, peacebuilding and statebuilding for the OECD and in environmental affairs for the UN, both in Paris. She now works in Geneva mainly on UN affairs relating to peacebuilding and the prevention of violent conflict, the human impacts of climate change and food and sustainability.
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