Articles

Introduction 

On the 7th of July 2022, the Council of Europe released a new report on Legal Gender Recognition (LGR) in Europe. This report represents a long-awaited stand taken by the Council of Europe in organising the effective recognition of gender identities in all aspects of life. The report contains an analysis of the implementation of the previous recommendations of the Council on “measures to combat discrimination on the grounds of sexual orientation or gender identity” (CM/Rec(2010)5). In doing so, it exposes that only 38 member states have created procedures allowing one to legally change their gender – of those, only nine based their systems on self-determination principles. The numbers become even more scarce when looking at the scope of those procedures: only seven countries have created a form of LGR allowing for the registration of a third gender – outside of the binary genders ‘male’ and ‘female’. The expansion of LGR procedures to persons whose gender does not fit this male/female binary is advocated for by the Council of Europe in its report. This claim is equally supported by Principles 3 and 31 of the Yogyakarta Principles +10 and the 2018 report of ILGA-Europe on non-binary registration models in Europe. In this context, it is appropriate to say that the European States, with the support of the Council of Europe institutions, are increasingly open to recognising the existence of gender outside of the socially established binary and to grant it legal recognition and protection. 

• Definitions: Legal Gender Recognition, non-binary gender identity, and  inter status

Before diving into the topic of this article, it seems appropriate to provide clear definitions for its subjects. 

Legal Gender Recognition, which will be referred to as LGR, is the legal or administrative process through which one can change their registered gender. It is mostly relevant for trans and inter persons who might not identify with the gender they were assigned at birth. 

Meanwhile, ‘trans’ refers to any person who does not identify with the gender they were assigned at birth. While some may self-identify under the terms ‘transgender’, ‘genderqueer’ or others, the article sticks to the use of ‘trans’ as a general and more inclusive denominator. Non-binary gender identity fits under the wide trans umbrella but concerns trans persons whose gender identity does not fit the male/female gender binary. Some may identify as an in-between male and female, a combination of them or neither. Some may use gender-neutral pronouns such as they/them, but not all. Similarly, some might medically transition and others not. 

Finally, inter status refers to the biological status of a person whose primary and/or secondary sex characteristics do not fit the established male/female binary. It is fundamental to note that inter and non-binary are not equivalents, the former relates to one’s biological identity and the latter to one’s gender identity. In this sense, inter persons can identify as non-binary, but not all do, and not all non-binary individuals present inter variations. 

• Existing LGR Procedures for Non-Binary Gender Identities

As of July 2022, seven European states have created a third gender category in gender registration procedures. They are Austria, Belgium, Denmark, Germany, Iceland, Malta, and The Netherlands. 

The following table represents the developments in each of those states: 

Table: Details of Legal Gender Recognition Procedures for Non-Binary Persons Existing in European States (Tissandier, 2022)

In Belgium, Denmark, Iceland, Malta and the Netherlands, systems of LGR now include a third category, which translates on identity documents as an ‘X’ gender marker. In all five of those countries, the procedures to access such registration are based on a form of self-determination which make it possible for non-binary person to qualify for them. This is notwithstanding that the Netherlands still implements a medical diagnosis requirement to access any form of LGR which would have to be abolished in order to reach true self-determination. 

The depathologisation of LGR is fundamental in creating true recognition and protection for trans and inter persons. Pathologisation consists in the treatment of (trans)gender identity as a medical category and hence applying medical control over transition and trans-related procedures. It can take the form of medical requirements in LGR procedures such as sterilisation, hormone replacement therapy, gender-affirming surgeries or psychiatric diagnosis. It is still applied by Germany and Austria within their third gender recognition. Indeed, in order to obtain an ‘X’ on their identity documents, citizens of Austria and Germany have to provide a medical certificate attesting to their non-binary medical status. In sum, those procedures are limited to inter persons who identify as non-binary and would like to see it reflected in their legal personality. Although, it is necessary to note that Germany unveiled a new plan for LGR based on self-determination on the 29th of June 2022 which includes the abolition of medical requirements for all forms of LGR which would put an end to the pathologisation of (trans)gender identity and open the third gender category (‘diverse’) to all non-binary persons (Holzer, 2018; Tissandier, 2022).

Additionally, it is to be noted that Germany also provides for the possibility of not registering one’s gender. 

• Are ‘third’ gender options really the solution? 

It is undeniable that the legal recognition of non-binary gender identities is necessary and long-awaited for the trans community. Additionally, it is a fundamental step in creating both legal protection and social acceptance. However, it is questionable whether creating a third gender category alongside the male/female categories is viable for non-binary and inter persons on a daily basis. In this sense, it is probable that when presenting an identity card with an ’X’ gender marker, one would risk outing oneself and, in many contexts, exposing oneself to discrimination, if not violence which is still largely present in the European States. Similarly, an option like the one added by Germany, of having the possibility of getting rid of one’s gender registration so as to not display any gender marker, has the same flaw. Indeed, if most persons retain a gender marker on their identity card, presenting one without a gender marker would automatically out the person as non-binary as well, exposing them to the same risks. However, the suppression of gender markers from identity documents is not one to discard (Ashley, 2021; Tissandier, 2022).

To this end, some states have started reflecting on the very necessity of the registration of gender on identity documents such as identity cards. For instance, Germany has enacted a change of that nature by no longer displaying the registered gender of individuals on their identity cards. Similarly, the Netherlands announced in a letter on the 3rd of July 2020 that it would take measures to that effect in the following four to five years. The suppression of gender markers on identity documents (excluding passports) would allow for the registration of one’s gender with the state and on administrative documents while not requiring that one discloses this status on a daily basis. Indeed, it is fair to say that gender, and especially legal gender when it is not in line with gender identity, is no longer a fundamental factor in determining if one’s identity matches their identity documents. Take, for example, the progress made in facial recognition and biometrics. Instead, it is mostly detrimental to trans persons who have to disclose their trans-identity when they have not changed their gender marker to match their appearance (Cannoot, 2019; Tissandier, 2022). 

Conclusion 

In conclusion, the article would like to mark the importance of supporting legal developments regarding the recognition of non-binary gender identities, as it constitutes a true first step to revolutionising European societies to be more inclusive and respectful of all. While the creation of third gender categories and ‘X’ gender marker can be seen as a good measure to provide immediate relief to non-binary persons, it is necessary to note that such procedures are not fool-proof and may fail to represent the full spectrum of non-binary gender identities and create further marginalisation. In this context, the more effective solution seems to be the suppression of gender from identity documents. Going even further, one could argue for the complete suppression of gender as a legal category, in the same ways that race, ethnic origin and religion have been removed from identity documents and later on from legal personality in most states. However, this is still far down the road in the development of a European consensus on gender identity and non-binary identities. 

The pending case of Y. v. France in front of the European Court of Human Rights will provide regional case-law on the necessity to organise the recognition of non-binary gender identities and the potential obligation to create a third gender category or to suppress gender from identity documents. It is very likely that the outcome of this case will guide the further developments regarding the recognition and protection of non-binary gender identities in Europe. 

SOURCES: 

Ashley, F. (2021). ‘X’ Why? Gender Markers and Non-binary Transgender People. In: Jaramillo, I.C., Carlson, L. (eds) Trans Rights and Wrongs. Ius Comparatum – Global Studies in Comparative Law, vol 54. Springer, Cham. https://doi.org/10.1007/978-3-030-68494-5_2. 

Cannoot, P. (2019). De knuppel in het genderhok: op weg naar M/V/X in de Nederlandse geslachtsregistratie? Tijdschrift Voor Familierecht, 2. https://www.researchgate.net/publication/331248368_De_knuppel_in_het_genderhok_op_weg_na ar_MVX_in_de_Nederlandse_geslachtsregistratie 

CDADI Working Group on sexual orientation and gender identity (GT-ADI-SOGI) and the European Governmental LGBTI Focal Points Network (EFPN). (2022, July). Legal gender recognition in Europe. Council of Europe. https://rm.coe.int/thematic-report-on-legal-gender-recognition-in-europe-2022/1680a729b3 

Clarke, J.A., (2019). They, Them and Theirs, Harvard Law Review, 132.

Ghoshal, N., (2020). Netherlands Sees No Role for Gender Marker on ID Documents. Human Rights Watch. Retrieved May 26, 2022, from https://www.hrw.org/news/2020/07/08/netherlands- sees-no-role-gender-marker-id-documents

Goshal, N., (2020). Transgender, Third Gender, No Gender: Rights Perspectives on Laws Assigning Gender, Part II, Opinio Juris, at http://opiniojuris.org/2020/09/04/transgender-third-gender- no-gender-rights-perspectives-on-laws-assigning-gender-part-ii/. 

Holzer, L. (2018, September). Non-Binary Gender Registration Models in Europe. Report on third gender marker or no gender marker options. ILGA Europe. 

Tissandier, E. (2022, July). Effective Recognition and Protection for Non-Binary Gender Identities in the Council of Europe Framework: a Critical Analysis of Third Gender Marker Options from a Human Rights Law Standpoint (unpublished). 

Tissandier, E. (2022b, July 18). Germany Reveals Plan to Facilitate Legal Name and Gender Change Procedures. GHRTV. Retrieved July 20, 2022, from https://ghrtv.org/germany-reveals-plan-to-facilitate-legal-name-and-gender-change-procedures 

1. v. France, European Court of Human Rights, Application No. 76888/17 (pending).