The Open Society Foundations has issued a new report, License to Be Yourself (54 page pdf), subtitled Laws and advocacy for legal recognition of trans people and authored by human rights consultant Jack Byrne, with input acknowledged from activists in Kenya, South Africa, Nepal, India, Hong Kong, South Korea, Australia, Argentina, Venezuela, the United States, Ireland Great Britain, Germany, Ukraine, Poland, Spain, Sweden, the Netherlands, France, Portugal, Malta, Hungary, and Switzerland.
Why did they produce this report?
License To Be Yourself has been produced for multiple audiences. It has been written as a resource for activists working on human rights issues for trans people, drawing on the expertise and experiences of trans activists from across the world. As the right to be recognized before the law is an important human right, this report is also intended for human rights activists who may not have previously engaged on the issue. Lastly, the report can be a useful source of comparative information for policy makers who are considering developing laws, policies, or regulations on legal gender recognition that uphold the rights of trans people.
This resource focuses primarily on changing sex/gender details on formal legal documents such as a birth certificate, passport, citizenship certificate, government-issued identification (ID) card, driver licence or voter-registration card. The relative importance of various documents varies between countries. In some it is very difficult for trans people to change their name to reflect their gender identity. Therefore many of the laws and provisions in this resource specifically stipulate the right to change these details too. In other countries the processes are quite separate.
Legal recognition is distinct from social recognition. Recognition of sex/gender on legal documents aids wider acceptance of that identity in everyday interactions. However it should never be a mandatory step in order for someone to assert their sex, gender identity or gender expression and have that respected (and protected under relevant anti-discrimination laws).The document acknowledges that intersex-specific actions are outside of the scope of the study, although many of the laws and approaches may be useful for intersex people as well.
Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basis aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity.Much of the report is nuts and bolts organizational support for local efforts at getting laws changed regarding legal recognition. The report stresses the need for a strong educational component, which is why I often highlight stories in the education realm and those regarding the media.
--Yogyakarta Principle 3
The vast majority of trans people around the world cannot obtain official documents under their appropriate name and sex that match their gender identity.In 2013 the UN Special Rapporteur on Turture classified the forced or coerced sterilization as a requirement for legal gender recognition as "inhuman."
The OSF report sets an ideal for progressive laws and policies:
Such laws and policies should be:
- based on self-defined gender identity rather than verification by others
- include more than two sex/gender options for those who identify outside the binary categories of male and female
- include intersex people
- apply to all residents, including those who are born overseas
- link to broader human rights, particularly access to health services that enable someone to medically transition if that is their choice
and should not:
- require a medical diagnosis of gender identity disorder, gender dysphoria, or transsexualism
- require transition-related medical treatment. such as hormone therapy or gender affirming surgeries
- require sterilization, either explicitly or by requiring medical procedures that result in sterilization
- require living continuously or permanently in one's gender identity
- require divorce or disolution of a civil partnership
- prohibit parenting now or the intention to have children later
- be governed by age restrictions. Options for children and youth should recognize their evolving capacities
The process for changing name and sex in official gender documentation should be simple, timely, low cost or free, transparent rather than discretionary, and confidential—with strong privacy protections.Making medical steps prerequisite for legal gender recognition violates fundamental human rights (the right to recognition before the law; the right to non-discrimination and equality before the law; the right to privacy; the right to health; and freedom from torture and other cruel, inhuman or degrading treatment or punishment).