PACE

Council of Europe Adopted Resolution Creating New Controversial Rights on Gender Identity

Discrimination and Transgender

By ECLJ1430268540000

On 22 April 2015, the Parliamentary Assembly of the Council of Europe (PACE) adopted the Resolution 2048 (2015) Discrimination against transgender people in Europe prepared by the Maltese socialist rapporteur, Deborah Schembri.

The purpose of this resolution is three fold. Firstly, it was designed to continue and complement the previous work of the Council of Europe on sexual orientation and gender identity as a prohibited ground of discrimination, namely the PACE Resolution 1728 (2010) and Recommendation 2021 (2013) and the Committee of Ministers Recommendation(2010)5, creating a right to gender identity.

Secondly, it achieved for the transgender activists what it did not succeed to obtain from the European Court of Human Rights (ECHR) through their recent strategic litigation: the abolition of the required conditions for obtaining the legal recognition of a new gender (questioned in Y.Y. v. Turkey case, n° 14793/08, judgment of 10 March 2015) and of the obligation to dissolve or transform into a civil partnership an existing marriage in order to legally recognize the gender reassignment (questioned in Hämäläinen v. Finland case, no. 37359/09, judgment of 16 July 2014).

Thirdly, this resolution accomplished even more. Although it is not compulsory, but advisory for the member States, it will serve as a proof of an emerging consensus in Europe on those issues and will be used by the ECHR to establish new obligations deriving from the European Convention on Human Rights when assessing pending cases on transgender issues. Currently, there are four pending cases before the ECHR that could benefit from this: D.C. v. Turkey concerning the refusal of the authorities to bear the cost of the applicants’s gender reassignment and the recently communicated cases Garçon v. France, Nicot v. France and A.P. v. France regarding the modification of the birth certificate which in France is submitted to the proof of the irreversible physical transformation of one’s appearance. Moreover, this resolution will be certainly used at national level to push the member States to adopt legislation to align to it.

More concretely, the resolution 2048 (2015) addressed very briefly the discrimination of transgender persons in the fields of employment, housing, justice and health care (§ 6.1.5.).

By contrast, it addressed at length controversial issues which do not gather consensus in Europe. First, the resolution created a right to gender identity for all, including for children and irrespective of the health status of the person, based on the principle of self-determination (§§ 6.2.1 and 6.2.2). Thus, upon simple request and indefinitely, everyone should have access to procedures for legal gender recognition and be able to change their name and gender on birth certificates and identity documents (§ 6.2.1.). The member States were required not to impose conditions for access to these procedures, such as sterilization, compulsory medical treatment or medical diagnosis (§ 6.2.2.).

Second, it addressed family law issues, civil status, insurance and classification of diseases (§§ 6.2 and 6.3). Thus, the member States were called not to dissolve or transform into civil partnership existing marriage after gender reassignments (§ 6.2.3.), to include a third gender option in identity documents for those who seek it (§ 6.2.4.) and to afford the reimbursement of the hormone treatment, surgery and psychological support by public health insurance schemes (§ 6.3.1.). The resolution also demanded the deletion of transgender from the national and international classifications of diseases (§ 6.3.3.).

Nevertheless, nine parliamentarians[1] tabled 12 amendments, Mr Valeriu GHILETCHI (Moldova) being the only one that bravely defended them during the debate. Proposing language in conformity with the international norms and the case-law of the ECHR, he drew the attention on the fallowing issues:

1. The absence of an emerging consensus in Europe on the existence of a right to gender identity based on self-determination, as only three out of forty seven member States of the Council of Europe (Denmark, Ireland and Malta) suppressed the requirements of sterilization and compulsory medical treatment. Moreover, as affirmed recently by the ECHR, member States are free to impose certain conditions for gender legal recognition, as they enjoy a large margin of appreciation in this field (see Y.Y. v. Turkey judgment of 10 March 2015, n° 14793/08, § 106).

2. The danger of creating a right to gender identity for all, including for children and irrespective of age and health status of the person, based on the principle of self-determination. The parliamentarian explained that due to their physical and psychological immaturity and taking into account the consequences for their health and development, the minors should not have access to such procedure (see the UN Convention on the Rights of the Child of 1989, especially the ninth reason of the Preamble). He sustained that age and medical status are also important factors in deciding whether a person should have access to the procedure to change his/her gender, name and to obtain the legal gender recognition. He proposed that in those cases, the access of certain adults should be assessed on a case by case basis (see Schlumpf v. Switzerland judgment of 8 January 2009, § 115). Moreover, he underlined that this provision will create an individual right to choose one’s legal sex any time and as many times as one desires.

3. The absence of competence of PACE to request the member States to allow the continuation of marriage after the gender reassignment, as it would oblige the member States to indirectly recognize marriage between same-sex persons, although the ECHR clearly stated recently that there is no obligation for the member States, neither under article 8, nor under article 12 of the Convention to allow same-sex marriage or to offer any other legal status to same-sex couples (see Hämäläinen v. Finland, no. 37359/09), judgment of 16 July 2014, §§ 71 and 96). Relating to this matter, Mr. Ghiletchi also proposed the insertion of the principle according to which in all decisions concerning children, their best interest should prevail over any other rights and interests (see Neulinger and Shuruk v. Switherland judgment, §§ 136 and137, P. V. v. Spain judgment and Article 3 § 1 of the UN Convention on the Rights of the Child of 1989). This amendment was adopted by the present majority of PACE but with the language of the UN Convention on the Rights of the Child.

4. The absence of a right to have any treatment reimbursed by the public health insurance, as member States are free to establish certain conditions for the reimbursement of certain treatments. Those conditions should not be arbitrary.

5. The absence of competence of PACE to decide on the deletion of transgender from the national and international classifications of diseases, as medical classification is a matter of science and not of politics.

Despite those problematical points, the resolution obtained 68 votes in favor (37 socialists, 16 people’s party, 6 liberals…), 23 against (14 people’s party, 3 socialists, 1 liberal…) and 12 abstentions. This result was possible due to the mobilization of socialists in the PACE and to the strong support of Mrs. Helena Dalli, Minister for Social Dialogue of Malta, who made a statement at the beginning of the debate and of Mrs. Anne Brasseur, chair of the PACE, although the latest should have remained neutral during the debate before the voting.

Although, only 103 parliamentarians expressed their vote on the resolution, which represents less than half of the 318 members of the PACE, it will have the same legal force as any other norms adopted by the Council of Europe.

By Andreea Popescu

[1] Mr Valeriu GHILETCHI, Republic of Moldova, EPP/CD ; Mr Ben-Oni ARDELEAN, Romania, EPP/CD ; Mr Zsolt CSENGER-ZALÁN, Hungary, EPP/CD ; Ms Aleksandra DJUROVIC, Serbia, EPP/CD ; Ms Rózsa HOFFMANN, Hungary, EPP/CD ; Mr Zsolt NÉMETH, Hungary, EPP/CD ; Mr Aleksandar NIKOLOSKI, ''The former Yugoslav Republic of Macedonia'', EPP/CD ; Mr Cezar Florin PREDA, Romania, EPP/CD ; Mr Egidijus VAREIKIS, Lithuania, EPP/CD

Cookies & Privacy

There is no advertising for any third party on our website. We merely use cookies to improve your navigation experience (technical cookies) and to allow us to analyze the way you consult our websites in order to improve it (analytics cookies). The personal information that may be requested on some pages of our website (subscribing to our Newsletter, signing a petition,  making a donation...) is optional. We do not share any of this information we may collect with third parties. You can check here for our privacy & security policy for more information.

I refuse analytics cookies