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Discrimination against transgender people in Europe

Doc. 13742: collection of written amendments | Doc. 13742 | 21/04/2015 | Final version

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1The Parliamentary Assembly regrets that transgender people face widespread discrimination in Europe. This takes a variety of forms, including difficulties in access to work, housing and health services, as well as a high prevalence of hate speech, hate crime, bullying and physical and psychological violence. Transgender people are also at particular risk of multiple discrimination. The fact that the situation of transgender people is considered as a disease by international diagnosis manuals is disrespectful of their human dignity and an additional obstacle to social inclusion.

In the draft resolution, paragraph 1, delete the last sentence.

Explanatory note

Medical classification is a matter of science, not of politics. It is dangerous for democracy when politicians decide on what should or should not be classified as a mental disease. The same is true for every disease. People with cancer or HIV also encounter obstacles to social inclusion.

2Awareness of the situation of transgender people is largely insufficient among the general public and accurate, unbiased information in the media is scarce. This leads to higher levels of prejudice and hostility which could be avoided.
3The Assembly is concerned about the violations of fundamental rights, notably the right to private life and to physical integrity, faced by transgender people when applying for legal gender recognition; relevant procedures often require sterilisation, divorce, a diagnosis of mental illness, surgical interventions and other medical treatments as preconditions. In addition, administrative burdens and additional requirements, such as a period of “life experience” in the gender of choice, make recognition procedures generally cumbersome. Furthermore, a large number of European countries have no provisions on gender recognition at all, making it impossible for transgender people to change the name and gender marker on personal identity documents and public registers.
4A number of Council of Europe member States have recently reformed their legislation on legal gender recognition or are in the process of doing so. Some regulations are based on the principle of self-determination and do not require long and complex procedures or the involvement of medical practitioners or psychiatrists.

In the draft resolution, paragraph 4, second sentence, replace the words "Some regulations" with the following words: "Regulations in Denmark, Ireland and Malta".

Explanatory note

Only in those 3 member States the regulation is based on the principle of self-determination and to a certain extent the regulations of Switzerland, Sweden and the Netherlands.

5The Assembly welcomes, in this context, the emergence of a right to gender identity, first enshrined in the legislation of Malta, which gives every individual the right to recognition of their gender identity and the right to be treated and identified according to it.

In the draft resolution, delete paragraph 5.

Explanatory note

There is no emergence of a right to gender identity in Europe, as only three member States of the Council of Europe base their regulation on the principle of self-determination: Denmark, Ireland and Malta.

6In the light of these considerations, the Assembly calls on member States to:
6.1as concerns anti-discrimination legislation and policies:
6.1.1explicitly prohibit discrimination based on gender identity in national non-discrimination legislation and include the human rights situation of transgender people in the mandate of national human rights institutions, with an explicit reference to gender identity;
6.1.2implement international human rights standards, including the case law of the European Court of Human Rights in this field, without discrimination on grounds of gender identity;
6.1.3collect and analyse information and data on the human rights situation of transgender people, including discrimination on grounds of gender identity and multiple discrimination, as well as transphobic intolerance and hate crimes, to be used as necessary guidance for designing, implementing and monitoring the impact of anti-discrimination legislation and policies;
6.1.4enact hate crime legislation which affords specific protection for transgender people against transphobic crimes and incidents; provide specific training to sensitise law-enforcement officials and members of the judiciary;
6.1.5provide effective protection against discrimination on grounds of gender identity in access to employment in the public as well as in the private sector, and in access to housing, justice and health care;
6.1.6involve and consult transgender people and their organisations when developing and implementing policy and legal measures which concern them;
6.2as concerns legal gender recognition:
6.2.1develop quick, transparent and accessible procedures, based on self-determination, for changing the name and registered sex of transgender people on birth certificates, identity cards, passports, educational certificates and other similar documents; make these procedures available for all people who seek it, irrespective of age, medical status, financial situation or current or previous detentions;

In the draft resolution, paragraph 6.2.1, delete the words: ", based on self-determination,"

Explanatory note

Basing the change of gender on self-determination would create an individual right to choose one's legal sex. Most European States impose certain conditions, in order to protect the individual. Only Denmark, Ireland, Malta and to a certain extent Switzerland, Sweden and the Netherlands do not impose conditions.

In the draft resolution, paragraph 6.2.1, replace the word "people" with the word: "adults"

Explanatory note

Due to their immaturity (physical, psychological, etc.) and the consequences for their health and development, minors should not have access to such procedures. This is in conformity with the UN Convention on the Rights of the Child of 1989, especially the ninth reason of the Preamble.

In the draft resolution, paragraph 6.2.1, delete the words: "age, medical status,"

Explanatory note

Due to the consequences for the health of the person, age and medical status are important factors to decide whether a person should have access to the procedure to change his/her gender, name and to obtain the legal gender recognition (e.g. minors, elderly people and people in specific health situations).

6.2.2abolish sterilisation and other compulsory medical treatment, including a mental health diagnosis, as a necessary legal requirement to recognise a person’s gender identity in laws regulating the procedure for changing a name and registered gender;

In the draft resolution, delete paragraph 6.2.2.

Explanatory note

It goes beyond the case-law of the ECHR and of the existing consensus in Europe. There is no consensus among the member States as to abolish the conditions to allow the access to such procedures. Most of the member States impose certain conditions.

6.2.3remove any restrictions on the right of transgender people to remain in an existing marriage upon recognition of their gender; ensure that spouses or children do not suffer a loss of rights;

In the draft resolution, paragraph 6.2.3, replace the words "remove any restrictions on the right of transgender people to remain in an existing marriage upon recognition of their gender" with the following words: "desist from arbitrarily interfering with the right to respect for private and family life, including when the transgender person is married".

Explanatory note

The wording would imply the generalisation of same-sex marriage. It goes beyond the case-law of the ECHR and the consensus among member States. See the ECHR, in the recent case Hämäläinen v. Finland (no. 37359/09) judgement of 16 July 2014, as well as Parry v. the United Kingdom (no. 42971/05).

In the draft resolution, at the end of paragraph 6.2.3, insert the following words: "in all decisions concerning children, their best interests should prevail over any other rights and interests;"

Explanatory note

The ECHR considers that the child's best interests must be the primary consideration in assessing whether a fair balance has been struck between competing interests at stake (see for example Neulinger and Shuruk v. Switzerland case §§ 136 and 137).

6.2.4consider including a third gender option in identity documents for those who seek it;

In the draft resolution, delete paragraph 6.2.4.

Explanatory note

This would imply the acceptance of a "third gender", in addition to male and female. In the context of the draft resolution such a third gender would be based on self-determination and non-pathological.

6.3as concerns gender reassignment treatment and health care:
6.3.1make gender reassignment procedures, such as hormone treatment, surgery and psychological support, accessible for transgender people, and ensure that they are reimbursed by public health insurance schemes; limitations to cost coverage must be lawful, objective and proportionate;

In the draft resolution, paragraph 6.3.1, replace the words "they are reimbursed by public health insurance schemes" with the following words: "the reimbursement by public health insurance schemes is not subject to arbitrary conditions".

Explanatory note

There is no right to have any treatment reimbursed by the public health insurance. The States are free to establish certain conditions to the reimbursement of the treatments. Those conditions should not be arbitrary.

6.3.2include transgender people explicitly in suicide prevention research, plans and measures; explore alternative trans health-care models, based on informed consent;
6.3.3amend classifications of diseases used at national level and advocate the modification of international classifications, making sure that transgender people, including children, are not labelled as mentally ill, while ensuring stigma-free access to necessary medical treatment;

In the draft resolution, delete paragraph 6.3.3.

Explanatory note

Amendment and modification of the classification of diseases used at national level is the competence of medical bodies and they should be based on scientific data and reasons. It is not the competence of the PACE to request such modifications from the member States.

6.4as concerns information, awareness raising and training:
6.4.1address the human rights of transgender people and discrimination based on gender identity through human rights education and training programmes, as well as awareness-raising campaigns aimed at the general public;
6.4.2provide information and training to education professionals, law-enforcement officers and health service professionals, including psychologists, psychiatrists and general practitioners, with regard to the rights and specific needs of transgender people, with a special focus on the requirement to respect their privacy and dignity.