Peter Dunne

Transgender Sterilisation Requirements in Europe

The possibility of individuals procreating post-transition has long stalked debates on transgender rights. In 1972, Sweden became the first European jurisdiction to formally acknowledge preferred gender. Under the original Swedish law, applicants for gender recognition were explicitly required to prove an incapacity to reproduce-either through natural infertility or through a positive act of sterilisation. Across the Council of Europe, 20 countries continue to enforce a sterilisation requirement. When considering reforms to their current gender recognition rules as recently as 2015, the Polish executive and the Finnish legislature both rejected proposals to remove mandatory infertility provisions. This article critiques the rationales for transgender sterilisation in Europe. It places transgender reproduction, and non-traditional procreation, in the wider context of European equality and family law. Adopting a highly inter-disciplinary framework, the article explores legal, social, medical, and moral arguments in favour of sterilisation, and exposes the weak intellectual and evidential basis for the current national laws. The article ultimately proposes a new departure for Europes attitude towards transgender parenting, and argues that sterilisation should not be a pre-condition for legal recognition.

Legal gender recognition in Europe: sterilisation, diagnosis and medical examination requirements

In AP, Garcon and Nicot v France App Nos. 79885/12, 52471/13 and 52596/13 (ECtHR, 6 April 2017) (‘APN’), the Fifth Chamber of the European Court of Human Rights (ECtHR) issued an important ruling on the conditions which State Parties may impose for legal gender recognition. The case concerned three transgender (‘trans’) women – none of whom had been formally acknowledged as female – who challenged various aspects of France’s gender recognition system. Each of the applicants argued that, by obliging individuals to irreversibly modify their bodies, French law imposed surgical and other medical treatments which had a high probability of sterilisation. The second applicant additionally complained that, by conditioning gender recognition on proof of a diagnosis of gender identity disorder, France had infringed her dignity. Finally, the first applicant, who had medically transitioned in Thailand but who was required to submit to physical examinations by court-appointed experts, alleged that such examinations were potentially degrading treatment. The ECtHR, building upon its earlier decision in YY v Turkey App No. 14793/08 (ECtHR, 10 March 2015), reaffirmed that article 8 of the European Convention on Human Rights (ECHR) guarantees the physical and moral integrity of trans individuals (para. 93). When balancing that right against the general public interest (i.e. the need to create a reliable, coherent and secure civil status [para. 132]), France enjoyed only a ‘restricted’ margin of appreciation (para. 123). While there was not yet a European consensus on sterilisation, such requirements undermined a fundamental aspect of intimate identity and were increasingly being repealed across the Council of Europe (paras. 123–124). The Court observed that mandatory infertility places trans persons in an ‘insoluble dilemma’ (para. 132). They must either submit to sterilising treatments, and compromise their physical integrity, or relinquish their right to gender recognition and live with a discordant civil status. Where sterilisation is a pre-condition for the right to gender identity and personal development, it cannot be consensual or voluntary (para. 130). In those circumstances, the Fifth Chamber (by a majority of six to one, Judge Ranzoni dissenting) concluded that France had failed in its positive obligation to respect private life. On the other hand, the ECtHR adopted a more deferential approach towards diagnoses and medical examinations. The Court noted that, among the 41 State Parties which currently

In the Matter of M (Children): a collision between two unconnecting worlds?

The recent judgment of the Court of Appeal, In the Matter of M (Children) (hereinafter ‘Re M’) [2017] EWCA Civ 2164, considered an application by a legal father for direct contact with her1 five minor children. Sitting at first instance (J v B and the Children (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4), Peter Jackson J (as he then was) had refused contact on the basis that a face-to-face relationship would expose the children and their mother to social marginalisation in their religiously conservative community. The Court of Appeal (Mumby P, Arden LJ and Singh LJ) allowed the father’s appeal and remitted the case for further consideration before Hayden J. The litigation – which has been a source of intense media and academic debate (Edwards, 2018; Sherwood, 2017; Wilson, 2017) – touches upon highly sensitive issues, requiring family judges to assess the appropriate role of human rights in welfare determinations. The dispute in Re M centres on the ultra-orthodox Charedi Jewish community in North Manchester. The father, who self-identifies within the Charedi Jewish faith, is a transgender (trans) woman. She entered into an arranged marriage in 2001, and the couple had five children. In 2015, the father left the family home in order to undertake a process of gender transition. She now lives in, and externally presents, her preferred female gender. As a result of manifesting a trans identity, the father has been excluded from the Charedi community in Manchester and is denied access to her children. In January 2016, the father made the application for direct contact. This was strongly opposed by the mother who argued that, within the religion-focused structures of Charedi Jewish society, imposing a face-to-face relationship would give rise to isolation, ostracism and a possible requirement that the children leave their community (J v B, paras. 73–74). These fears were reinforced by numerous experts during the application hearing, including a rabbi, representatives from the Anna Freud Centre and the children’s guardian (Re M, paras. 16–28). In his judgment, Peter Jackson J identified 15 ‘formidable’ arguments in favour of direct contact (para. 166), including respect for the wishes of the children and upholding the right to family life (para. 166). Nevertheless, the judge ultimately decided to refuse the fathers application (preferring indirect contact four times a year, para. 188) because

(Trans)Forming Single-Gender Services and Communal Accommodations

The right of transgender (‘trans’) persons to access gender-segregated space is neither a new controversy nor a conversation which is unique to the United Kingdom. Yet, despite increasingly charged political debates in North America, the question of trans access to single-gender facilities remains largely underexplored by British legal academics. In January 2016, the UK House of Commons Select Committee on Women and Equalities recommended expanding trans entry into single-gender services and communal accommodations under the Equality Act 2010. Using the Committee’s report as a springboard for debate, this article considers the right of trans populations to use their preferred women-only and men-only spaces. Critically analysing the existing possibilities to exclude trans persons from services and accommodations, as well as the policy arguments which motivate this approach, the article demonstrates how, adopting common-sense, evidence-based reforms, Parliament can introduce legal rules which both prioritize user safety and respect trans dignity.

ENHANCING SEXUAL ORIENTATION AND GENDER-IDENTITY PROTECTIONS IN STRASBOURG

IN Identoba and Others v Georgia (Application No 73235/12), 12 May 2015, the Fourth Section of the European Court of Human Rights held that Georgias failure to prevent, and effectively investigate, attacks against an anti-homophobia march violated Articles 3 and 11 of the European Convention on Human Rights (ECHR), read in conjunction with Article 14.