The pathologisation of trans* persons in the ECtHR’s case law on legal gender recognition
| DOI | 10.1177/0924051918820984 |
| Date | 01 March 2019 |
| Published date | 01 March 2019 |
| Subject Matter | Articles |
Article
The pathologisation of trans*
persons in the ECtHR’s case
law on legal gender recognition
Pieter Cannoot
Human Rights Centre of Ghent University, Belgium
Abstract
The European Court of Human Rights is the human rights monitoring body that has dealt with the largest
number of cases related to gender identity and trans* persons. In this regard, it has recognised under Article
8ECHRbotharighttogenderself-determinationanda positive obligation for the State to adopt a pro-
cedure for legal gender recognition. However, Contracting States were given a wide margin of appreciation
to set conditions for the legal recognition of a person’s actual gender identity, leading to the acceptance by
the Strasbourg Court of pathologising requirements such as a diagnosis of gender dysphoria and com-
pulsory sex reassignment surgery. This contribution analyses and conceptually explains this message of
trans* pathologisation in the ECtHR’s case law. Subsequently, on a normative level, it argues that this case
law cannot be upheld taking into account the international trend towards full trans* depathologisation, and
the scope of the margin of appreciation that States (ought to) have in cases concerning gender identity.
Keywords
European Court of Human Rights, trans* persons, gender nonconformity, pathologisation, gender
self-determination
1. Introduction
In recent years, trans*
1
issues have made their way into mainstream media, with positive representations
of trans* persons increasingly appearing in popular culture.
2
Indeed, cultural awareness and
Corresponding author:
Pieter Cannoot, Human Rights Centre of Ghent University, Universiteitstraat 4, 9000 Gent, Belgium.
E-mail: pieter.cannoot@ugent.be
1. The term ‘trans*’ will be used throughout this contribution to denote all forms of gender nonconformity. Gender
nonconformity refers to the situation where a person’s gender identity or gender expression does not match their reg-
istered sex or the gender identity/expression that society attaches to it.
2. E. Bribosia and I. Rorive, ‘Human rights integration in action: making equality law work for trans people in Belgium’ in
E. Brems and S. Ouald-Chaib (eds), Fragmentation and Integration in Human Rights Law: Users’ Perspectives (Edward
Elgar Publishers 2018) 111.
Netherlands Quarterly of Human Rights
2019, Vol. 37(1) 14–35
ªThe Author(s) 2019
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societal recognition of many forms of gender identity, gender expression and gender roles
have continued to progress around the globe.
3
Over the last decade, trans* rights and gender
nonconformity as a legal and human rights issue have also been high on the agenda, both at the
international a nd national level.
4
However, until very recently the law has quasi uniquely focussed
on providing legal accommodation for transsexual persons who desired to, legally and physically,
belong to the sex opposite to the one assigned to them at birth.
5
In many countries worldwide,
those persons have been able to have their registered sex changed in the light of their actual
gender identity.
6
In this regard, most procedures require the compliance with some psycho-
medical condi tions, ranging from an exp ert assessment/diagnosi s confirming gender dysph oria
or transsexuality, to sex reassignment treatment or compulsory sterility.
7
This is also referred to as
the legal pathologisation of gender nonconformity and trans* identities.
Although this use of pathologising conditions in law has been continuously criticised from a
human rights perspective, its inherent exclusionary effect is often overlooked.
8
Indeed, over the
last decade it has become increasingly clear that compulsory compliance with psycho-medical
requirements, such as a psychiatric assessment/diagnosis and forced medical treatment in order
to obtain legal gender recognition, violate the individual’s right to personal autonomy and/or
physical integrity.
9
However, these requirements also effectively reserve legal gender recogni-
tion for trans* persons who are able and willing to comply with those medical conditions, that is
transsexual persons.
10
Although transsexual persons are probably the best-known members of the trans* community,
they only form ‘the tip of the iceberg’ of gender variation. Recent Belgian research indicated that
while the prevalence of transsexualism was estimated at 1:12,900 for male-to-female transsexuals
and at 1:33,800 for female-to-male transsexuals,
11
the prevalence of gender incongruence
12
(0.7%
3. A. J. Neuman Wipfler, ‘Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and
the Possibility of Genderless Identity Documents’ (2016) 39 Harvard Journal of Law & Gender 491, 494.
4. M. van den Brink, ‘The Legitimate Aim of Harmonising Body and Soul. Changing Legal Gender: Family Life and
Human Rights’ in K. Boele-Woelki and A. Fuchs (eds), Same-Sex Relationships and Beyond. Gender Matters in the EU
(Intersentia 2017) 247. See in this regard also K. Franklin and S. E. Chinn, ‘Transsexual, Transgender, Trans: Reading
Judicial Nomenclature in Title VII Cases’ (2017) 32 Berkeley Journal of Gender, Law & Justice 1, 3.
5. See in this regard for instance D. A. Gonzalez-Salzberg, ‘The Accepted Transsexual and the Absent Transgender: a
Queer Reading of the Regulation of Sex/Gender by the European Court of Human Rights’ (2014) 29 American
University International Law Review 797, 828.
6. This procedure is often referred to as ‘legal gender recognition’.
7. Although other conditions, such as compulsory divorce, may also be problematic from a human rights perspective, this
contribution will only focus on conditions of a psycho-medical nature.
8. See below.
9. Z. Davy, A. Sørlie and A. Suess Schwend, ‘Democratising diagnoses? The Role of the Depathologisation Perspective
in Constructing Corporeal Trans Citizenship’ (2018) 38 Critical Social Policy 13, 27.
10. In this contribution, a distinction is made between transsexual trans* persons and non-transsexual trans* persons. While
the former are willing to undergo sex reassignment therapy in order to align their bodily appearance with their
experienced gender identity, the latter are not. Although non-transsexual trans* persons might want to undergo some
trans*-specific forms of health care, such as for instance a breast reduction or removal, they do not necessarily seek full
congruence between their sex characteristics and experienced gender identity. In other words, while all transsexual
persons are trans*, not all trans* persons are transsexual.
11. G. De Cuypere and others, ‘Prevalence and Demography of Transsexualism in Belgium’ (2007) 22 Eur. Psychiatry
137. These estimations only take into account transsexuals who seek access to medical and/or surgical treatment.
12. ‘Gender incongruence’ refers to the situation where a person more strongly identifies with the gender identity that
society attaches to the opposed sex than with the gender identity aligned with their own sex.
Cannoot 15
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