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Executive summary
Within the broader context of
discrimination, discrimination on the grounds of gender identity and gender expression,
as well as discrimination on grounds of sex vis-à-vis intersex people, are
particularly complex issues. This is due to the fact that the legal recognition
and rights afforded to this community are often intertwined with specific
medical and psychological obligatory requirements. Whilst most of the report
deals with discrimination on the grounds of gender identity and gender
expression, a brief part focuses on the specific discrimination that intersex
people face.
In Europe and in other parts of the world
this is reflected in various legal requirements that trans and intersex people
must meet in order to it into one of the two possible genders / sexes. The
report explores in detail the medicalisation and pathologisation of trans
identities and intersex bodies. It gives an overview of the current situation
and information about the dissonance between the rigid requirements established
in law and the demands of trans and intersex people with regard to healthcare
and their ability to choose the extent of treatments that they undergo (if
any). The report then gives a brief overview of the discrimination that trans
people face in access to employment and other spheres of life, as well as the
levels of harassment, violence and bias-motivated crime that they are victims
of both in the domestic and the public sphere.
In a brief part on international human
rights law, the report looks into the legal treatment of trans discrimination outside
EU law, in particular under United Nations law and under the Council of
Europe’s European Convention on Human Rights and Fundamental Freedoms and the
case-law related to it. The report shows that while there are few direct
references to gender identity in international law, there is an increasing body
of resolutions and recommendations that suggests increasing institutional awareness
of the seriousness of gender identity discrimination.
The main part of the report deals with EU
law on trans discrimination. EU non-discrimination law does not at present contain
an explicit prohibition of discrimination on the grounds of a person’s gender
identity and gender expression. Indeed, Art. 19 TFEU, which is the most general
legal provision on non-discrimination in the EU Treaty, entitles the EU to take
action to combat “discrimination based on sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation” only, without
mentioning trans issues. Neither does a prohibition on discrimination against trans
people appear in the EU Charter of Fundamental Rights.
However, this does not mean that at present
there is no applicable EU law in this context. According to the case-law of the
Court of Justice of the European Union, discrimination against trans people may
amount to discrimination on the grounds of sex in so far as people who intend
to undergo, are undergoing and have undergone gender reassignment are
concerned. The report describes and analyses this case-law as well as its
application in the EU Member States. It also discusses the difficulties
presented by CJEU case-law.
From a legal conceptual point of view the
main difficulty lies in the Court’s reasoning and, more specifically, in the comparison
on which the Court bases its discrimination analysis, i.e. in the choice of the
comparator used to arrive at a finding of sex discrimination. Initially, the
Court appeared to compare the post gender-reassignment transsexual person who
complained about discrimination with a person of the opposite sex who had not
undergone gender reassignment (in fact, it would appear that the concrete
comparator was the complainant herself, before gender reassignment). However,
later the Court moved in a direction that makes it difficult to understand why
discrimination on grounds of gender reassignment should be covered by law on
sex discrimination. The Court now compared the treatment of heterosexual
couples where neither partner’s identity is the result of gender reassignment
surgery with the treatment of couples where the identity of one partner has led
to gender reassignment being intended, underway or already undergone. Finally,
in yet another case, the Court stated that cases involving discrimination against
transsexual people on grounds of the gender reassignment that they have
undergone must be analysed based on a comparison not between men and women, but
rather between the post-operative transsexual (e.g. a female-to-male
transsexual) and a person of the same sex (i.e. a woman) whose sex is not the
result of gender reassignment surgery. In all of these cases, confusion also
lies around what constitutes gender reassignment, and none of them refer to the
surgical status of the applicants or in the case of K.B., the partner of the
applicant.
Whilst from a conceptual point of view it
may be difficult to see why such cases should be sex discrimination cases,
including them into the category of sex discrimination is at present the only
pragmatic way to provide legal protection against discrimination on grounds of
gender reassignment under EU law. Even so, the fact remains that so far CJEU
case-law on trans issues deals exclusively with discriminatory consequences of
gender reassignment, which is only one aspect of the broad spectrum of trans
discrimination. This report therefore advocates that the Court interprets
existing discrimination grounds in a purposive manner, giving them the broadest
possible meaning in order to live up to the Union’s commitment to respect for
human dignity and human rights, including the rights of persons belonging to
minorities (Art. 2 TEU).
Following the description and analysis of
the present CJEU case-law on gender reassignment, the report discusses various
challenges to the legal analysis of trans discrimination cases against the
background of the relevance of legal concepts of EU law. As general background,
it should be remembered that EU law includes not only explicit non-discrimination
provisions but also general principles of equality and non-discrimination,
which may also play a role in discrimination cases against trans people. In a
concrete case that involves alleged discrimination, the facts must first be
analysed in order to determine the relevant discrimination ground. The report
shows that sometimes this is less obvious than might be assumed. Further, there
is the question of whether the concept of discrimination by association may be
relevant in the context of some cases of discrimination against trans people.
The report argues that the concept should indeed be seen as an additional tool
that may strengthen the position of claimants in trans discrimination cases.
Next, the different forms of discrimination
recognised in modern EU non-discrimination law – i.e. direct and indirect discrimination,
harassment and instruction to discriminate – are also relevant in the context
of trans discrimination cases. The cases so far decided by the Court of Justice
must be seen as direct discrimination cases. On the other two concepts
(harassment and instruction to discriminate) there is no case-law concerning
discrimination against trans people yet. Further legal concepts that may play
an important role in trans discrimination cases but on which there is not yet
any specific CJEU case-law concern justification, positive action, the burden
of proof and remedies and sanctions. Finally, as in other contexts, cases of
multiple discrimination may pose particular difficulties.
A specific part of the report provides case
studies of national legislation and case-law on gender identity and gender
expression discrimination. In this context, it is important to realise that EU
non-discrimination law is merely a minimum regime which does not prevent the
Member States from providing protection against discrimination on additional
grounds and better protection more generally of victims of discrimination. As
the discussion of best practice in this report shows, there are promising
approaches in the laws of some Member States which can and should serve as
models for others to follow.
Finally, a specific part of the report
deals with discrimination against intersex people. Intersex discrimination is a
particularly complex form of sex discrimination. Notably, surgery on intersex
people is not the same as gender reassignment. It often takes place early in
life before the person concerned can participate in the decision-making process.
For this reason, the key stakeholder groups often consist of the parents of
intersex children, who do not wish to have their children associated in any way
with sex ambiguity. However, many intersex adults are angry that surgery was
performed upon them as young children without their consent. At the same time,
they do not necessarily desire genital reconstruction, because of the severe
impact it can have on sexual pleasure. This part follows the structure of the
sections related to gender identity and gender expression and looks into
current legal coverage of intersex people at EU and Member States level,
relevant case-law, and the recent discussion that has started in some Member
States as to how to best respect the human rights of intersex people.
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