By Maria Matilde Carreira
Each day we hear more about “trans rights” on social media, films, shows and news. Transgender laws have sparked social debate about changing one’s gender legally. We also hear related to family matters, such as the problem of “men giving birth” as well as conservatives using anti-trans narratives to “protect children”. Trans issues raise fears because they challenge so-called natural concepts (such as the idea that only women give birth).
The blog post explores the issue of trans parenthood by laying focus on the requirement of sterilisation. Sterilisation is a pre-condition in certain European Union (hereinafter ‘EU’) states to access legal gender recognition (hereinafter ‘LGR’). This condition yields a significant impact on rainbow families[1] with trans parents. I will discuss the rationale of this condition and the case law of European courts – focusing on the European Court of Human Rights (hereinafter ‘ECtHR), but also the European Court of Justice (hereinafter ‘ECJ’). This will allow me to reflect on what changes have been and should be made and what the future of trans parenthood in the EU should be.
So, what does it mean to be trans? Trans is an umbrella concept that refers to people “whose gender identity and expression doesn’t conform to that typically associated with the sex to which they were assigned at birth”[2]. This means identifying as a woman (trans woman), as a man (trans man). Cisgender is the opposite term, used to describe people whose gender matches their sex assigned at birth.
Trans people face a legal issue which is the existence or not of legal gender recognition. LGR indicates whether or not the law will reflect these people’s identity – a practical example is if the gender on their ID matches their identity. This affects the family life of trans people, like their parenting role in the eyes of the law, for example. The issue of parenting rights of trans men and trans women is still underdeveloped.
Recognising different gender identities that challenge and differ from the sex assigned at birth (trans identities, as explained) is a recent phenomenon. While steps ahead were made, several obstacles to the full enjoyment of LGR remain in place in Europe.
Pre-conditions like sterilisation are a significant obstacle. The rationale behind this condition is to make LGR only accessible to people who are willing to give up on their reproductive capacities. There is a “need to restrict the reproductive capacity of transgender persons to uphold traditional reproductive binaries”[3]. Pregnancy and childbirth must only be associated with the legal female gender and allowing a person who is legally male to get pregnant or a person who is legally female to donate sperm contradicts this idea. In other words, to have their identity recognized, trans people must undergo procedures that bring them as close as possible to sexual characteristics that cisgender people are born with. But in fact, these laws are built on wrong assumptions around gender identity.
These constraints result in a clear violation of autonomy. Trans individuals are forced to choose between not having access to a legal gender identity, a right recognised in Goodwin v UK case under the right to respect for one’s private life – Article 8[4] of the European Convention of Human Rights (hereinafter ‘the Convention’) -; or undergoing a procedure that will jeopardise their right to physical integrity. But it can also be a violation of family life, recognised in the same article. This affects trans individuals’ ability to form and maintain family relationships. They will be unable to perform biological functions that would allow them to start a family. But it can also result in the stigmatisation of trans families since it constitutes an obstacle to the establishment of a stable union.
The EU must enforce fundamental rights as guaranteed by the Convention (Article 6(3) of TUE)[5]. The ECtHR has stepped away from previous interpretations in which it ruled that Article 12 should be interpreted in terms of “biological criteria for determining a person’s sex for the purpose of marriage”[6]; or from recognising the right to gender identity only to “post-operative transsexuals”[7] (individuals that have submitted to gender reassignment surgery).
Now, the ECtHR recognises that gender identity is an expression of private life, which falls within the intimate sphere of the individual. As a matter of fact, the A.P., Garçon and Nicot v France case highlighted this shift. In this case, the ECtHR ruled that sterilisation, as a condition of LGR, violated trans people’s right to respect for private life under Article 8 of the Convention. It was even in breach of Article 3 of the Convention[8] since these medical interventions interfered with physical integrity and reproductive rights. The ECtHR stated that there is no genuine consent if a failure to undergo these procedures “deprives the person concerned of the full exercise of his or her right to gender identity and personal development, which (…) is a fundamental aspect of the right to respect for private life”[9]. The court upheld this stance in the 2021 case of X and Y v Romania.
A.P., Garçon and Nicot v France is also a key case because it was not narrowly decided as only referring to France (as, for instance, it was the case in Oliari v. Italy[10]). Consequently, Member-States (hereinafter ‘MS’) that accept the court’s jurisdiction will have to ensure that their national laws comply with the Convention and, in this sense, eliminate the existing pre-conditions requiring sterilisation to access LGR. However, the Court decided that both the requirement of a medical diagnosis of gender identity disorder and undergoing a medical examination were compatible with Article 8 of the Convention. This demonstrates that it was still not ready to reiterate that the right to gender identity must be based on mere autonomy and self-determination.
Sterilisation limits trans people’s ability to build a family. But divorce can also be a requirement for LGR, which prevents married trans people from legally changing their gender without divorce. A legal and stable union must be destroyed. Nevertheless, the Court found no violation of Article 8 in a case imposing divorce as a pre-condition for LGR (Hämäläinen v. Finland case).
Furthermore, A.M. and Others v Russia is a highly relevant decision of the ECtHR. Not only is it very recent (2021), but it was also the first time that the ECtHR ruled specifically on trans parenthood. The applicant was a transgender woman, who was deprived of contact with her children “on account of her gender transitioning”[11] because there could be a “negative effect (…) on her children’s psychological health and development”[12]. The Court held that Article 8 was violated. This decision helped remove the stigma against trans individuals and their ability to form loving and stable family ties. Trans people and their experiences, such as undergoing gender affirmation surgery, are not negative for children; separating them from their parents, based solely on their gender identity, is.
Moreover, non-recognition of trans parents’ legal gender diminishes their right to private and family life. O.H. and G.H. v Germany is a case that was decided by the ECtHR in April of this year related to this. O.H. is a transgender man who gave birth to a child (G.H.). However, “even though the legal recognition of his gender change to male had already been obtained in 2011 before the child was conceived in 2013”[13], he was denied recognition as the father and registered as the mother. This is because German law at the time required that “the person who gives birth to a child be registered as the mother on the birth certificate, regardless of their gender identity”[14]. The ECtHR ultimately did not find a violation of Article 8, in particular, due to the recognition of a wide margin of appreciation for the state[15]. This margin was granted after observing that “there was no consensus among the European States”[16] which “reflected the fact that gender reclassification combined with parenthood raised sensitive ethical issues”[17]. This could have been a revolutionary decision on the recognition of the gender identity of transgender parents within the Council of Europe. The opposite conclusion would have created greater stability for trans people willing to start a family by giving birth.
It is important to highlight that previous decisions of the European Court of Justice also affected the legal status of trans persons and families. The ECJ is the official court responsible for the interpretation and application of EU Law. This court only intervenes within fields that fall under the ambit of EU law, it is hence not a specialized court in the area of human rights. In KB v NHS Pensions Agency and Another, Richards v Secretary of State for Work and Pensions, and MB v Secretary of State for Work and Pensions, the ECJ confirmed that EU Members are competent to establish their own rules on the legal recognition of gender. However, a MS is not allowed to impose conditions that violate the right to non-discrimination based on sex when a person seeks access to an EU benefit.
Moreover, there is a forthcoming case referred to the ECJ regarding LGR[18] which, as established, may have a significant impact on trans people’s right to respect for family life. This case concerns Arian Mirzarafie-Ahi, a trans man with Romanian and British citizenship, who was granted LGR in the United Kingdom (at the time, the UK was still an EU MS). However, Romanian authorities refused to recognise his new male name and the gender identity he acquired in the UK. Romania states that to be recognised in his gender identity, he must comply with the Romanian gender recognition procedure. However, Romania is one of the countries that requires sterilisation as a pre-condition for access to the LGR, a procedure incompatible with the ECHR. The case was referenced to the ECJ because of the impact on his freedom of movement, and his rights as an EU citizen, as he is now left with two different identities. With the Romanian passport showing a wrong identity, his freedom of movement, right to residence, right to employment, right to education, and even right to vote, like any other EU citizen, were unfairly restricted. This case might serve as a precedent for other transgender people whose gender identity is recognized in one EU MS but not another.
The case law clearly shows the impact of LGR procedures on the lives of trans parents and families.
The ground-breaking decision of the ECtHR, which ruled that sterilisation as a condition for LGR is a violation of Article 8, is binding on all states that accept the Court’s jurisdiction. However, 10 European countries[19], including 5 EU Member-States (Finland, Latvia, Czech Republic, Romania and Cyprus) and 2 candidates (Serbia and Montenegro) still require mandatory sterilisation before changing gender. A change to eliminate sterilisation is still needed[20].[NP1]
Legal gender recognition should be guided by respect for trans people’s right to private life, which is deeply connected to their right to family life and respect for their autonomy. It should not consider a gender binary or a “[NP2] ‘punishment’ for having trespassed the boundaries between genders”[21]; but as a mechanism for self-determination, taking identities into account. However, this is not what seems to be happening. LGR conditioned on sterilisation and other medical interventions allows for the recognition of trans identities, but only when they don’t overtly challenge or threaten the established gender binaries. Transgender identities can therefore be legally recognised when trans individuals seeking recognition demonstrate that they have aligned themselves with what is expected of the gender they want to be recognised. This has an obvious impact on family life and percolates down into judgments such as the recent decision to register a trans man giving birth as the mother.
The EU and the states in the Council of Europe must ensure protections for trans families, including the possibility to fully develop family ties without discrimination.
[1] Families where one or more than one of the parents is a member of the LGBTQ+ community. The LGBTQ+ community is a group that includes lesbian, gay, bisexual, transgender and queer individuals and other gender identities and sexual orientations.
[2] American Psychological Association. Answers to your questions about transgender people, gender identity, and gender expression. American Psychological Association. Retrieved April 16, 2023, from https://www.apa.org/topics/lgbtq/transgender-people-gender-identity-gender-expression
[3] Dunne, P. (2014). “Recognizing Identities, Denying Families”: Conditions for The Legal Recognition of Gender Identity in Europe. Rights On the Move – Rainbow Families in Europe (pp. 295-310). Trento: University of Trento.
[4] Article 8 ECHR reads: “Everyone has the right to respect for his private and family life, his home and his correspondence”.
[5] Article 6(3) TUE reads: “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.
[6] European Court of Human Rights (1990), Cossey v United Kingdom, Ap. No. 10843/84.
[7] A term used by the ECtHR in Grant v The United Kingdom; Sheffield and Horsham v. the United Kingdom; Christine Goodwin v. the United Kingdom. However, in 2019, in the case of X v Macedonia, the Court referred to the applicant as a “pre-operative transsexual”.
[8] Article 3 ECHR reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
[9] European Court of Human Rights (2017), AP, Garçon and Nicot v France, Ap. Nos. 79885/12, 52471/13 and 52596/13.
[10] The Court decided in that case that “the absence of a legal framework allowing for recognition and protection of [applicants] relationship violates their rights under Article 8 of the Convention”. However, the argumentation used is specific to the Italian context – for example, the fact the public opinion towards homosexuality was positive in Italy.
[11] European Court of Human Rights (2021), A.M. and Others v Russia, Ap. No. 47220/19.
[12] Ibid.
[13] European Court of Human Rights (2023), O.H. and G.H. v Germany, Ap. No. 53568/18 and 54741/18.
[14] Ibid.
[15] The term refers to the discretion given to national authorities to comply with their obligations under the Convention. The wider the margin, the more the discretion enjoyed by the state.
[16] European Court of Human Rights (2023), O.H. and G.H. v Germany, Ap. No. 53568/18 and 54741/18.
[17] Ibid.
[18] Abdi, F. (2023, March 9). Trans man’s LGR case in Romania is referred to CJEU – TGEU Trans man’s LGR case in Romania is referred to CJEU. TGEU. https://tgeu.org/trans-mans-lgr-case-in-romania-is-referred-to-cjeu/
[19] Data of 2022 from Transgender Europe (TGEU), https://transrightsmap.tgeu.org/home/legal-gender-recognition/sterilisation
[20] But also, ideally, to eliminate other invasive medical procedures. However, [NP3] this is not unanimous, even within the trans community. For more information, Palazzo, N. (2021). Terre di mezzo e mine vaganti: Una lettura post-strutturalista del riconoscimento del giuridico del genere della persona trans, GenIUS. Vol. 14, No. 1, 6-24.
[21] Palazzo, N. (2021). Terre di mezzo e mine vaganti: Una lettura post-strutturalista del riconoscimento del giuridico del genere della persona trans, GenIUS. Vol. 14, No. 1, 6-24.
