Europe and Gender Recognition: A shared approach

Introduction

Currently across multiple countries in Europe, gender diverse individuals are still lacking not only societal acceptance, but also their gender identity being legally recognised. This article aims to explore current gender recognition laws across Europe, and whether or not Europe as a whole should adopt a shared approach to gender recognition. The article will argue that many European countries’ gender recognition policies remain outdated and non-inclusive of their transgender and non-binary citizens. Therefore a shared approach across Europe could assist in bringing these nations that are falling behind, up to a more inclusive position. Furthermore, the article will include the UK in its analysis of Europe’s gender recognition laws. This is due to the fact that the review of the UK’s gender recognition act was pre-Brexit, and also to highlight the fact that for a Europe without the UK, who hold vastly redundant gender recognition laws, a more positive and hopeful outcome could be on the horizon for European citizens. 

The UK

During the height of the UK’s lockdown in June 2020, we saw what we thought could be a glimmer of hope for the LGBT community, with the announcement that the outdated Gender Recognition Act (GRA) of 2004 would be reviewed for change by the British government. The most pressing issue it appeared, was decreasing the difficulty involved for transgender individuals in the UK to obtain a Gender Recognition Certificate (GRC). A GRC allows individuals to legally change their gender from that which is associated with their biological sex, and therefore the gender that is stated on their passport or birth certificate. However, as Mermaids UK have noted in their publication on accessing a GRC, ‘Unfortunately in the UK there is not yet any legal recognitions of other genders (besides male or female), nor is there the ability to legally have no gender or an unspecified gender’ (Mermaids UK, 2020). Therefore, if someone were to obtain a GRC now, they would only be able to change their gender between binary male and female, leaving non-binary individuals still unable to be legally recognised as such. Furthermore, although gender diverse people in the UK have been campaigning for years for changes to be made to the GRA, and for the government to recognise gender non-confirming individuals on a legal basis, the changes made to the GRA in September 2020 were extremely minimal, and the difficulty of accessing a GRC remains high. 

The government website states that to access a GRC, an individual will need to have obtained ‘A medical diagnosis of gender dysphoria from an approved medical practitioner’ and ‘Agreement from their spouse/civil partner’ (HM Government, 2020).  This further perpetuates and increases the already high levels of discrimination that transgender people face in the UK and globally today. The idea that a transgender individual requires ‘permission’ from their spouse to change their gender, further works to control transgender individuals, as does the medical system, making the transgender community jump through hoops just to be formally recognised as transgender by a medical professional. Arguably this also feeds into the false notion of gender being strict and binary, as for example, individuals who identify as gender fluid may not necessarily suffer from gender dysmorphia, and wouldn’t want to change their gender from one binary option to the other, however may use they/them pronouns, and therefore would want this legally recognised. 

James et al. (2016) discuss that at least 25-35% of transgender non-conforming individuals identify as non-binary or gender non-conforming, denoting a gender identity outside of the dichotomous male/female binary (James et al., 2016, cited in Fiani & Han, 2018).  

Liszewki et al. (2017) state that ‘Non-binary people’s gender identity lies outside the boundaries of a strict male-female, as a gender identity, it is independent of biological sex (male, female or intersex) and sexual orientation. Non-binary and transgender are both considered gender minorities, but there may be differences between the two’ (Liszewki et al., 2017, p. 1). 

Changes to the gender recognition act in the UK do not look like they will be coming anytime soon, and this has created a further strain on the British Transgender community, especially during the pandemic. Due to the fact that to legally change gender in the UK you must be diagnosed with gender dysmorphia and have had counselling from a gender clinic or medical professional, transgender people in Britain need an array of different doctor’s appointments, and years in and out of clinics just to be approved for medical changes such as hormones, or to legally change their genders. Mohan (2020), published an article through the BBC in the peak of the Pandemic, entitled ‘Transgender people extremely vulnerable during lockdown’. Mohan notes that ‘Gender reassignment surgeries have been delayed globally as a result of coronavirus, with elective procedures stopped to expand capacity for intensive care because of the pandemic. Transgender people are about twice as likely to take their own lives as other LGBT people, and lack of health access adds particular pressure to the trans community’ (Mohan, 2020). The UK government therefore with its minimal changes to the GRA, the lengthy process they make the transgender community go through to access a GRC, and the UK’s lack of recognition for non-binary individuals shows that they are not, as a country, doing enough to protect their gender diverse citizens and their needs. 

Poland

Another member state in the European Union that is currently failing to protect the rights of its gender diverse citizens is Poland. Poland has seen an increasing wave of governmental, judicial and societal attacks on the LGBT community in recent years. ‘Same sex marriages and civil unions are not legal in Poland, same sex couples have no legal right to adopt children and 100 towns and regions across Poland have passed resolutions condemning ‘LGBT ideology’. Those who defend such moves say they are opposed to an ‘aggressive ideology promoting homosexuality’ (BBC News, 2020). It therefore comes as no great surprise to discover that Poland’s gender recognition policies are falling behind other European states (or previous EU states such as the UK), as Makarewicz-Marcinkiewicz states, ‘Contemporary Poland resists gender recognition, which causes the social exclusion of transgender Polish individuals’ (Makarewicz-Marcinkiewicz, 2019, p. 20). The issues in Poland affect the entire LGBTQ+ community, with the promotion of homosexuality being seen as ‘aggressive’ and ‘shoved down people’s throats’. 

The latest draft presented to the Polish parliament to revise Polish gender recognition policies was done so in 2015, and was subsequently denied by newly re-elected government officials, and specifically vetoed by the president. The proposed gender recognition would allow (non-married) individuals to have their (binary) gender reformed on official documents, as long as there was the confirmation of two separate health care officials that the individual was suffering with gender dysmorphia, and so to ‘prove that the process of gender recognition was not an instantaneous, reversible desire to change’ (Makarewicz-Marcinkiewicz, 2019, p. 25). 

Furthermore, the draft bill noted that, ‘cases concerning gender recognition would be assessed by courts in non-contentious proceedings. An application for gender recognition would require the opinions of two specialists, which would prove that the person has a different gender identity than the one found on their birth certificate. The final decision of a court would entitle the person to obtain new identity documents and a new name’ (Szuleka, 2015). Again, this proposal was vetoed, however even if it had been accepted and made it to white paper, would it be enough? Transgender people would be able be recognised in the eyes of the law as transgender, but only as a transgender male or female (the act, similarly to the British one, does not recognise non-binary individuals), as long as they were legally single and had two medical professionals providing evidence that they were transgender and suffering with gender dysmorphia. 

Spain

Luckily, there is a European nation state that seems to actively be taking steps in the right direction to improve the lives of its transgender and LGBT citizens. Alvarez (2021) states that ‘Spain’s equality ministry has prepared a draft bill that would enable transgender people to officially change their gender with the authorities and on their ID document, without a medical diagnosis of gender dysphoria’ (Alvarez, 2021). 

This would dramatically speed up the process for transgender individuals to legally change their gender, as again it can take years of waiting to finally receive a formal diagnosis of gender dysmorphia. Furthermore, Alvarez also mentions that ‘the draft bill also recognises non-binary people, those who identify as neither male nor female, and proposes eliminating the gender field on official documents’ (Alvarez, 2021). The process of eliminating gender fields on official documents such as passports or citizenship cards, would allow gender non-conforming and non-binary individuals to have their gender identity legally recognised, and cuts ties with the idea that gender exists merely on a binary spectrum. 

Furthermore, McKenzie notes that ‘Spain has drafted a new gender recognition legislation which would allow transgender people to self-identify without medical intervention. Current legislation requires an individual to undergo medical and physical examination, or several years of hormone treatment to have their gender affirmed’ (McKenzie, 2021). Again, Spanish transgender and gender diverse residents are in no different position than British gender diverse citizens in the fact that accessing medical support to gender clinics, hormones, and a diagnosis of gender dysmorphia can take years of waiting. As mentioned earlier, the pandemic has also had an extreme effect on transgender healthcare, with appointments for gender identity clinics, diagnosis’ for gender dysmorphia, and access to surgery and hormones being almost inaccessible. Therefore, under the new proposed act in Spain, individuals would not have to wait for years, to potentially be diagnosed with gender dysmorphia, to then in the future work to legally change their gender. Enabling individuals to legally change their gender without having to wait years and for a medical diagnosis to do so would work to drastically improve the lives, treatment and mental wellbeing of the gender diverse population. With legal acceptance, and no longer being faced with as much mis-gendering, transgender individuals may see a rise in societal acceptance and would be able to freely and in the eyes of the law, live and identify in the way they choose to. 

A shared approach

After analysing three nation states and their approaches to gender recognition, it can be clearly seen that states across Europe take vastly dissimilar approaches in protecting the rights of their gender diverse citizens. Countries like Spain and The Netherlands are progressive and taking steps in a positive direction, however Poland and the UK still uphold outdated views in regards to the spectrum of gender not being binary, and the differences between gender identity and biological sex. A shared approach across European member states could see a drastic change in the way that European transgender citizens are treated and accepted in wider society. The normalisation of gender not existing on a solely binary field, and the further gender identities besides the binary that comes from this must be recognised by Europe, and therefore mandatory for each individual member state to also identify with. If each European state were to follow Spain’s lead, and uphold the same gender recognition act, then gender neutral documents such as residency cards and passports could be introduced across Europe, which could also lead to non-European states following suit. With a shared approach, gender diverse citizens who currently reside in or are citizens of countries that still hold outdated views in terms of gender, would feel safer, and would be able to live their lives in the way they truly identify with. Being able to be legally recognised as a gender different from an individual’s biological sex is not only liberating, but also a human right.

References

Álvarez, P. (2021) Spain’s Equality Ministry drafts law that would let citizens change official gender without medical checks, EL PAÍS, 03 February. Available at: https://english.elpais.com/society/2021-02-03/spains-equality-ministry-drafts-law-that-would-let-citizens-change-official-gender-without-medical-checks.html [Accessed 6 March 2021].

BBC. (2020) Poland LGBT: Diplomats from 50 countries call for end to discrimination, BBC, 28 September. Available at: https://www.bbc.com/news/world-europe-54317902 [Accessed 6 March 2021].

Fiani, C., Han, H. (2018) Navigating identity: Experiences of binary and non-binary transgender and gender non-conforming (TGNC) adults. International Journal of Transgenderism, 20(2-3), pp. 181-194.

HM Government. (2020) Gender dysphoria: list of specialists (T493). HM Government, 23 November. Available at: https://www.gov.uk/government/publications/gender-dysphoria-list-of-specialists-t493 [Accessed 6 March 2021].

Liszewski, W., Peebles, J., Yeung, H., Arron, S. (2018) Persons of Nonbinary Gender — Awareness, Visibility, and Health Disparities. New England Journal of Medicine, 379(25), pp. 2391-2393.

Makarewicz-Marcinkiewicz, A. (2019) Resisting Gender Recognition in Poland: A Process of Social Exclusion. Polish Political Science Review, 7(2), pp.19-31.

Mermaids UK. (2021) Kids & Young People, Mermaids UK. Available at: https://mermaidsuk.org.uk/young-people/ [Accessed 6 March 2021].

McKenzie, K. (2021) Spain’s new gender bill will allow trans people to self-identify without medical intervention, Olive Press News Spain, 10 February. Available at: https://www.theolivepress.es/spain-news/2021/02/10/spains-new-gender-bill-will-allow-trans-people-to-self-identify-without-medical-intervention/ [Accessed 6 March 2021].

Mohan, M. (2020) Coronavirus: Transgender people ‘extremely vulnerable’ during lockdown. BBC News, 29 April. Available at: https://www.bbc.com/news/world-52457681 [Accessed 6 March 2021].

Szuleka, M. (2015) Gender Recognition Is Still Unregulated in Poland. Liberties, 02 December. Available at: https://www.liberties.eu/en/news/gender-recognition-in-poland-still-unregulated/5896 [Accessed 6 March 2021].