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Medical Requirements for Gender Recognition and Intersectionality: a Case study of ECtHR case law



By Sarah Schoentjes*


The term “intersectionality” was coined by Kimberlé Crenshaw in 1989, in her article “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics”. She uses the term to describe the phenomenon of multiple grounds of oppression interacting to create a new situation of oppression that cannot simply be reduced to the sum of its parts.


Let us consider an example to make this theory clearer: the seminal illustration of intersectional oppression is the oppression of a Black woman. Indeed, in many situations, a Black woman is oppressed not because she is Black on the one hand, and because she is a woman on the other hand, but instead because she is, specifically, a Black woman. Her patterns of disadvantages are different to those of Black men and white women, and when considering her oppression, it is essential to keep in mind the context of a society that prioritizes maleness and Whiteness, neither of which she possesses.


Intersectionality is crucial to the practice of human rights law. Indeed, a lack of attention to intersectionality leads to inadequate human rights protection and redress. Solely considering the needs of the most privileged among a community often means that intersectionally marginalized members of that community do not see their needs recognized or fulfilled, which leaves them more vulnerable to human rights violations. When those violations occur, failing to consider their intersectional aspects leads to inadequate redress, as entire facets of the situation are ignored and left as is. In certain cases, this even allows the violation to spread further: failing to put an end to the violation in certain aspects of the case means the negative impact of the violation can run its course and affect entire communities. This also explains why intersectional oppression is so intimately tied to structural and systemic oppression.


For an illustrative example of the importance of intersectionality in international human rights law, let us take a look at medical requirements for gender recognition, and more specifically, at how those requirements lead to the further oppression and marginalization of intersectionally marginalized trans people.


Abusive requirements for gender recognition


Legal gender recognition means that the State registers a trans person’s correct gender identity in civil records and issues them accurate ID papers. Beyond the validation inherent in the State recognizing one’s identity, such gender recognition has very far-reaching consequences for human rights. Indeed, if a trans person’s ID papers do not match their gender presentation, that makes them extremely vulnerable to discrimination in such varied domains as healthcare, the job market, education, mobility, etc. Many of those domains are related to various rights – consequently, gender recognition is essential to ensure the human rights of trans people. This has led the European Court of Human Rights (“ECtHR”) to declare that gender recognition is protected under Article 8 (the right to private life) of the Convention (“ECHR”) in 2002, in the case of Christine Goodwin v. UK.


However, in the same judgment, the ECtHR also ruled that the conditions for gender recognition still fall within the State’s margin of appreciation. These conditions for gender recognition can be varied: some of the most common examples are mandatory sterilisation, a mandatory diagnosis of gender dysphoria, mandatory medical treatments such as hormones or surgery, mandatory divorce, loss of parental rights, mandatory waiting times and “real life experience,” and in some cases, age requirements. Those requirements are called “abusive” because they put trans people before a human rights dilemma – they force a person to choose between one human right (gender recognition and the associated protection from discrimination and other human rights violations) and another (such as, depending on the requirement at hard, personal autonomy, respect for private life, physical integrity, etc.).


Human rights doctrine – justifiably – focuses very strongly on the “human rights dilemma” aspect of abusive requirements for gender recognition. In this post, I would like to highlight another way in which abusive requirements are incompatible with human rights: they act as a de facto intersectional exclusion mechanism. Indeed, if a trans person’s intersectional positioning renders them unable to comply with a particular requirement, they will also be unable to obtain gender recognition. Consequently, abusive requirements for gender recognition bar intersectionally marginalized trans people’s access to gender recognition and the human rights it ensures.


The ECtHR’s case law on gender recognition has a significant impact on intersectionally marginalized trans people across Europe, whether or not the Court explicitly considers them in its reasonings. In the present post, I will be studying this intersectional exclusion in action by focusing on the impact of a specific subset of abusive requirements, namely medical requirements for gender recognition, which include sterilisation, surgeries (genital and otherwise), and hormone replacement therapy.



The intersectional impact of medical requirements for gender recognition


First and foremost, mandatory medical requirements essentialise trans people in a way that has very little regard for the reality of their experience. Indeed, they assume that all trans persons are transsexual, and consequently exclude transgender people from the purview of gender recognition. Issues of terminology are fraught and in constant flux, and dichotomies tend to be restrictive by definition, but for the sake of this post, I will be using the term “transsexual” for persons whose gender identity does not match up with the sex they were assigned at birth and who choose to undergo all treatments associated with medical transition, such as hormone replacement therapy, mastectomy or breast implants, and genital surgery. I will instead use “transgender” for persons who experience a similar discrepancy between gender identity and sex assigned at birth, but who opt not to undertake a “complete” medical transition. Transgender people may be trans men, trans women, or people who do not fit within the gender binary. In this regard, it seems obvious that requiring a “complete” medical transition as a condition for gender recognition excludes transgender persons (including non-binary people) from access to gender recognition. Consequently, only transsexual persons are afforded the rights and protection ensured by gender recognition. Furthermore, forcing trans people to comply with such strict physical guidelines before recognising their gender limits the legal definition of “gender” to a very strict, binary, cisnormative interpretation of it.


Such medical requirements can also be impossible to comply with for people with certain illnesses and disabilities, which can render surgery, anaesthesia, hormone therapy, or a variety of medical procedures, contra-indicated or even fatal. Some trans people are religious, and as such, may live their life according to religious tenets that forbid certain medical procedures. This would force religious trans people to make a choice between their identity as trans and their identity as religious. Furthermore, in States where “non-essential” medical procedures are not covered by social security or insurance, such requirements can be an insurmountable barrier for trans people living in poverty. In this regard, it is important to remember that poverty, in turn, disproportionally affects otherwise marginalized people (e.g. migrants, people of colour, disabled people, single parents, etc.)


We can conclude that these requirements create intersectional oppression against a subset of trans people. All trans people who are, due to a variety of intersectional positionings, “unwilling or unable” to undergo such medical procedures are excluded from the scope of gender recognition. This, in turn, leads to further oppression: the discrepancy between their gender presentation and their ID papers puts them at risk of discrimination, which means they have a harder time completing education, finding and keeping a job, obtaining housing, being treated properly and appropriately for medical conditions, etc. This in turn further impacts their access to gender recognition procedures, and thus, a cycle of marginalisation is created.


Intersectionality in the ECtHR’s case law on medical requirements for gender recognition


Let us look now at a few of the more specific medical requirements for gender recognition. The first, and often considered the most egregious, is mandatory sterilisation. It was only in 2017, in the case of A.P., Garçon and Nicot v. France, that the ECtHR spoke on this requirement, declaring that it violated Art. 8 ECHR. This means that, since 2017, Member States are no longer allowed to demand that a trans person be sterilised before granting them gender recognition (though ten still do, compared to 20 in 2017). The Court’s reasoning in this regard is certainly praiseworthy, insisting repeatedly on the incompatibility of such a requirement with physical integrity under Art. 8, and pioneering the “impossible dilemma” reasoning, in which the Court explicitly gives weight to the argument that certain requirements for gender recognition are abusive because they force trans persons to choose between gender recognition and another human right (in this case, physical integrity).


It may, however, be relevant to stress that, throughout the entire judgment, there is not a single mention of the reason why sterilisation was a requirement for gender recognition in certain Member States – that is, to ensure that trans people cannot become parents after they have obtained legal gender recognition. This may be explained by the fact that the applicants already had children before they started their transition; however, this aspect is still very relevant for trans people for whom that is not the case. Though it might be a consequence of other medical transition procedures, sterilisation in itself is not a medical intervention that can, in any way, be argued to be gender affirming or even to comply with societal expectations tied to a certain gender. Its only purpose is to avoid having (more) children. This is relevant to this post’s topic, of course, since its direct consequence (and, I would argue, clear purpose) is to exclude trans parents, an intersectional category of trans people, from (legally recognised) society. This is also a telling example of the structural ramifications of intersectionality: it showcases perfectly how uncomfortable our society is with the idea of trans people being allowed around children, let alone being allowed to procreate and/or raise children, and how repressive it is willing to be to achieve that aim.


When it comes to other medical requirements, there is not yet much case law on anything else than mandatory genital surgery. In this matter, the ECtHR has undergone a rather rapid shift. In 2008, it declared the case of Nuñez v. France inadmissible, because the applicant’s request not to have to undergo genital surgery before obtaining gender recognition was considered manifestly unfounded. The Court clearly still considered mandatory genital surgery to fall squarely within the State’s margin of appreciation concerning gender recognition. There was a gap of almost ten years before a similar application was brought before the Court: the very same case of A.P., Garçon and Nicot. Indeed, the applicants actually complained about the French requirement being “an irreversible change in appearance”. This wording is up to interpretation, but the Court chose to interpret it as sterilisation, rather than as surgeries in general.


In the two later judgments that concerned mandatory genital surgery, the Court takes a similar approach: interpreting the case in a way that makes it possible for them to avoid ruling on the surgery requirement. In S.V. v. Italy (2018), the Court ruled that the long waiting times for genital surgery led to the applicant having had to wait for too long to obtain gender recognition. However, since the applicant did want to undergo genital surgery, the Court stated that there was no need to examine that requirement, and limited its reasoning to the waiting times. Two years later, in X v. North Macedonia, the issue was that there was no clear legal framework for gender recognition, and the national courts had told the applicant that he needed genital surgery first. He challenged this before the ECtHR, but the Court decided that the lack of clear legal framework for gender recognition sufficed to find a violation of Art. 8, and that there was no need to examine the condition of genital surgery.

In early 2021, finally, the ECtHR ruled explicitly on genital surgery as a requirement for gender recognition. In X and Y v. Romania, the applicants’ complaint is similar to X v. North Macedonia (an unclear legal framework for gender recognition and the imposition of genital surgery by the national courts), but the ECtHR reaches a very different conclusion. While it also condemns the lack of a clear legal system, it goes a step further in this case, explicitly concluding that the requirement of genital surgery violates Art. 8. To reach this conclusion, the Court once more relies on the “impossible dilemma” reasoning, finding that it is incompatible with the Convention to force people to choose between their right to gender recognition and their right to physical integrity.


Like in most of its trans cases, the ECtHR refuses to consider the applicants’ arguments under Art. 14. This is regrettable, because both the applicants and the third party interveners handed the Court the relevant arguments concerning discrimination on a silver platter. Their reasoning showed an understanding of the intersectional discrimination at play in this case, and it is unfortunate that the Court did not include at least part of this in its judgment.


However, this absence of intersectional reasoning does not really affect the very positive outcome of the X and Y v. Romania judgment: it has de facto eliminated an entire subset of intersectional oppression against trans people. As explained above, eliminating the requirement of genital surgery makes gender recognition accessible to a much larger category of trans people, notably transgender people, non-binary people, sick and disabled trans people, trans people living in poverty, and religious trans people. In time, it will also help break the cycle of marginalisation affecting trans people who could not obtain gender recognition before this judgment. The importance of these consequences cannot be overstated.


Furthermore, this judgment is the second time the Court uses the “impossible dilemma” reasoning concerning medical requirements for gender recognition. While there is no case law as of yet about other medical requirements (such as chest surgery, other surgeries or hormone therapy), this newly established line of reasoning makes it very likely that the same argument could be used fruitfully to challenge such requirements. It would, of course, be wonderful to see the Court explicitly address the intersectional aspects of such cases, but even in the absence of such a reasoning, the positive practical consequences for intersectionally marginalized trans people should not be underestimated.


It must, however, be said that in all of the cases discussed here, the Court insists on the applicants’ rather “classical” trans narrative – being heterosexual and “binary” trans, having “always known” they were trans, having completely socially transitioned and being quite gender-conforming, and having undergone an extensive medical transition except for genital surgery. This does raise the question of whether a trans person whose intersectional positioning made them conform less well to this stereotype – be it because they were queer, gender non-conforming, or because their socio-economic situation made it harder for them to take certain steps in their social or medical transition – would be as well-protected by the Court if they were to submit an application about another medical requirement.


Conclusion


Medical requirements for gender recognition act as an intersectional exclusion mechanism, because they bar trans people with intersectional positionings that render them unwilling or unable to comply with such requirements from the rights associated with gender recognition. This creates a cycle of oppression that further marginalises the most vulnerable among trans people. Such requirements also uphold a very cisnormative, binary view of gender, which excludes trans people whose experiences do not fit within that framework. In the specific case of mandatory sterilisation, it also shows a deep discomfort with the specific intersectional category of trans parents.


The ECtHR’s recent judgments on this topic have had very positive consequences, which it would be misplaced to downplay. By condemning mandatory sterilisation and genital surgery under Art. 8 ECHR, the Court has de facto eliminated a barrier to gender recognition for several categories of intersectionally marginalized trans people. The “impossible dilemma” reasoning it applied in these cases could easily be extended to other medical requirements for gender recognition, which would also increase intersectional access to gender recognition. Whether it could also encompass other abusive requirements, beyond those touching directly to physical integrity, remains to be seen, as the Court has not yet condemned any non-medical abusive requirement for gender recognition.


Despite such a positive outcome, however, the Court’s representation of trans people in gender recognition cases remains quite cisnormative, and it consistently fails to explicitly address the intersectional ramifications of such requirements. This leaves the rights of intersectionally marginalized people on shaky ground. A more conscious inclusion of intersectional reasoning might help the Court in addressing the structural issues inherent in abusive requirements for gender recognition, and avoid the most vulnerable among trans people being left by the wayside.


* Sarah Schoentjes is PhD Researcher at the Human Rights Centre of Ghent University.


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