European instruments to
help move trans* issues
forward
Silvan Agius
TGEU & STA Capacity Building Seminar
Edinburgh, 12 September 2011
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Quiz Time!
(10 mins)
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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
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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
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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)
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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!
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Council of
Europe
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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.
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Rec. LGBT
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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.
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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.
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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.
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Health Recs.
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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.
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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.
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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.
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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.
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ILGA-Europe
Implementation
Guidelines
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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.
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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?
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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?
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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.
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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?
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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.
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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?
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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.
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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 nondiscriminatory manner?
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European
Union law
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P v. S and Cornwall County Council (Case C13/94)
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.
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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)
• Sarah Margaret Richards v Secretary of State for Work and Pensions
(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.
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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 (2606th Council and
Commission meeting 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.
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Further
reading
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Further reading
Document Link
Document Link
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Further reading
Document Link
Document Link
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Other
European
partners
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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
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Questions welcome.
silvan@ilga-europe.org
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