B Explanatory memorandum by Ms Saïdi,
rapporteur for opinion
1 I wish to congratulate the rapporteur of the Committee
on Social Affairs, Health and Sustainable Development, Ms Liliane
Maury Pasquier, on her report which is as comprehensive as it is
2 A large number of issues within the remit of the Committee
on Equality and Non-Discrimination have been addressed in this report:
among the groups identified by the rapporteur as the main targets
for forced or coerced sterilisations and castrations in the 20th
century, three (namely Roma women, transgender persons and persons
with disabilities) are victims of various forms of discrimination
and have been the focus of our committee’s work from a number of
angles. I can only endorse the strictly human rights-based approach
taken by the rapporteur and concur with her conclusions.
3 In this opinion, I will merely emphasise a few aspects which
are particularly relevant to the activities of the Committee on
Equality and Non-Discrimination and to the principles it has promoted
since its inception, under its extended terms of reference.
2 Sterilisation: a form of gender-based violence
4 Looking at Ms Maury Pasquier’s report, it is clear
that women have been disproportionately affected by the coerced
sterilisations carried out over the past decades. Within the Roma
communities, the targets of the sterilisation campaigns have been
women. The same is true for people with disabilities. Outside Europe, coerced
sterilisations have been carried out on women drug addicts (in the
United States, for example) and women with HIV/AIDS. Cases of coerced
sterilisation of women with HIV/AIDS have been reported in many countries,
including Chile, Mexico, Namibia, the Dominican Republic, South
Africa, Venezuela and Zimbabwe. In some Asian countries, doctors
encouraged women who were HIV-positive to get themselves sterilised;
given the authority that doctors enjoy, especially over individuals
who are illiterate and in poor health, the distinction between encouragement
and coercion is very subtle.
5 In the CEDAW system (Convention on the elimination of all
forms of discrimination against women) operated by the United Nations,
coerced sterilisation is considered a form of violence against women.
In its Recommendation No. 19, the Committee on the Elimination of
Discrimination against Women states that “compulsory sterilization
or abortion adversely affects women’s physical and mental health,
and infringes the right of women to decide on the number and spacing
of their children”. It accordingly asks the States Parties to “ensure
that measures are taken to prevent coercion in regard to fertility
and reproduction, and to ensure that women are not forced to seek
unsafe medical procedures”.
6 While the text as a whole refers mainly to fertility control
and access to safe abortion, it seems to me that these principles
should also be interpreted as precluding any form of sterilisation
that is not voluntary. The “right to decide on the number of children”
should, in my view, include the right to begin and continue a pregnancy as
well as the right to end it.
7 The Council of Europe Convention on Preventing and Combating
Violence against Women and Domestic violence (Istanbul Convention,
CETS No. 210) provides in Article 39 (Forced abortion and forced sterilisation)
that “Parties shall take the necessary legislative or other measures
to ensure that the following intentional conducts are criminalised:
… performing surgery which has the purpose or effect of terminating
a woman’s capacity to naturally reproduce without her prior and
informed consent or understanding of the procedure”. The entry into
force of the convention and its application by the Parties will
pave the way for effective action against any sterilisation practices
that target women. In my view, this prohibition will introduce into
various countries’ legal culture the general rule that forced or
coerced sterilisation is an unacceptable form of violence. That
will make it easier to do away with such practices, including in
the case of transgender persons, who are not all directly protected
under Article 39 of the Istanbul Convention.
3 Transgender persons
8 Transgender persons are consistently subjected to
forced or coerced sterilisation. The rapporteur has looked in detail
at developments in Sweden, the first country to introduce legislation
on sex change in 1972. Under this legislation, anyone wishing to
change sex was required to be sterilised.
9 Although, as the rapporteur points out, the law in Sweden
has been revised, in many countries sterilisation is still a requirement
in such cases. This issue was addressed by Nicolas Beger, Director
of Amnesty International's European Institutions Office, at a hearing
on the situation of transgender persons in Europe which was held
in Paris on 24 May 2013, during the meeting of the Committee on
Equality and Non-Discrimination.
10 As Mr Beger pointed out, this is one of the many forms of
discrimination that transgender persons still face in Europe today.
They are the only group that is still subjected to coerced sterilisations
prescribed by law. In 24 European countries, sterilisation is a
requirement for anyone wishing to change sex. In 19 countries, divorce
is also required.
11 The other guest speaker at the hearing on 24 May, Vanessa
Lacey from Transgender Equality Network Ireland, spoke about the
discrimination experienced by transgender persons and told her own
personal story. Before adopting a female gender identity, she had
been married to a woman with whom she had two children. Quite apart
from all the other issues, this suggests to me that any sterilisation
requirement aimed at “keeping a certain order” in matters relating
to parentage is not only unfair and inhumane, but also pointless.
Such aims, moreover, belong to a bygone age, when the notion of
gay and lesbian parenthood did not exist.
12 A useful reference when dealing with transgender persons is
The Yogyakarta Principles on the Application of International Human
Rights Law in relation to Sexual Orientation and Gender Identity,
drawn up by an international group of experts in 2006 to protect,
and impose an absolute prohibition of discrimination against, LGBT
persons. The authority of these principles has been recognised on
several occasions by the United Nations and the Council of Europe.
13 Principle No. 3, entitled “The right to recognition before
the law”, states that “Each person’s self-defined sexual orientation
and gender identity is integral to their personality and is one
of the most basic aspects of self-determination, dignity and freedom.
No one shall be forced to undergo medical procedures, including
sex reassignment surgery, sterilisation or hormonal therapy, as
a requirement for legal recognition of their gender identity. No
status, such as marriage or parenthood, may be invoked as such to
prevent the legal recognition of a person’s gender identity”.
14 I wholly subscribe to this principle, the wording of which
seems to me to be very clear. It is worth quoting here some of the
recommendations that appear later in the same text. “States shall:
… Take all necessary legislative, administrative and other measures
to fully respect and legally recognise each person’s self-defined gender
identity; Take all necessary legislative, administrative and other
measures to ensure that procedures exist whereby all State-issued
identity papers which indicate a person’s gender/sex – including
birth certificates, passports, electoral records and other documents
– reflect the person’s profound self-defined gender identity; Ensure
that such procedures are efficient, fair and non-discriminatory,
and respect the dignity and privacy of the person concerned …;”