Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter T.6: Transsexual and transgender persons

Jens M Scherpe

I. Concept and notion

Following Stephen Whittle’s terminological approach (Whittle, Respect and Equality: Transsexual and Transgender Rights (Routledge-Cavendish 2002) xxii f), the term ‘transgender person’ in this entry is meant to indicate all persons who live, or desire to live in the role of a gender which is not the one designated to that person at birth; ‘transsexual person’ is meant to refer to those transgender persons who desire or have undergone gender reassignment treatment/surgery.

That said, this entry deals with the legal gender of persons, and more specifically with the possibilities of changing a person’s legal gender once it has been allocated. The legal situation of persons who were not allocated a legal gender at birth (a possibility recently introduced in Germany by the Gesetz zur Änderung personenstandsrechtlicher Vorschriften, [2013] BGBl. I 122) if it was not possible to unequivocally classify that person as either male or female because of the physical sexual characteristics of that person, or who desire a gender allocation that is neither ‘male’ nor ‘female’, both often referred to as ‘intersex’, are beyond the scope of this entry.

As this entry mainly is concerned with legal aspects, the terms ‘changing legal gender’ or ‘recognition of preferred gender’ will be used to describe the acts that in the eyes of the law ‘change’ the gender of a person, while of course being fully aware that in actuality the persons concerned did not, as is often referred to in the public discourse, ‘change their gender’ as they continue to be the very same person they were before the legal act.

II. Purpose and function

Until very recently, in all European jurisdictions (as mentioned Germany so far being an exception in Europe) the legal gender of a person was determined and classified shortly after birth as either male or female. The legal gender of a person is one of the constituents of the legal status of a person. Many legal provisions are gendered in the sense that they will only apply if a person has a specified gender, for example in family law (eg provisions using terms like mother and father, or marriage in many jurisdictions still being considered the union of a man and a woman →same-sex marriage), social security law (eg maternity leave), criminal law (eg the crime of rape), pensions etc. Hence, the legal gender of a person continues to matter (even though admittedly it matters less than it did some 50 years ago), but one might very well question whether this should be the case.

III. Historical development

Traditionally, it was the case that once a person’s legal gender was fixed it was immutable (except in cases where there had been a mistake in the registration). However, with considerable delay the law began to follow the findings in other disciplines (especially medicine and psychology) and jurisdictions gradually started to provide for the possibility of a change of legal gender under certain conditions.

The earliest statute enacted in this regard was the Swedish Act on determination of gender in certain cases (Lag (1972:119) om fastställande av könstillhörighet i vissa fall). This Act allowed the change of legal gender under restrictive conditions, such as the requirement for gender reassignment surgery, including sterilization. Since 1972, the Swedish law has been amended on a number of occasions, with the strict surgery requirements being only recently removed. In 1980, Germany followed Sweden by enacting the Act on the change of given names and determination of gender in specific cases (Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (Transsexuellengesetz), [1980] BGBl. I 1654). The 1980 Act initially introduced similarly restrictive rules but many p. 1739of these have now been challenged successfully in the German Constitutional Court, including the surgery requirement (Federal Constitutional Court of Germany (BVerfG), 11 January 2011, 128 BVerfGE 109), minimum age (Federal Constitutional Court of Germany (BVerfG), 16 March 1982, 60 BVerfGE 123, 26 January 1993, 88 BVerfGE 87), nationality requirements (Federal Constitutional Court of Germany (BVerfG), 18 July 2006, 116 BVerfGE 243) and the requirement to dissolve an existing marriage before the preferred gender can be recognized (Federal Constitutional Court of Germany (BVerfG), 27 May 2008, 121 BVerfGE 175). In the following years, several European jurisdictions enacted statutes in this area: eg Italy in 1982: Norme in materia di rettificazione di attribuzione di sesso, legge 14 April 1982, n 164; the Netherlands in 1985: (then) art 1:29a–d Nieuw Burgerlijk Wetboek of 1 January 1992, henceforth NBW (now art 1:28–28c), Turkey in 1988: (then) art 19 of the Turkish Civil Code (Law No 4721 of 7 December 2002 as amended by Law No 4963 of 6 August 2003 published in official Gazette No 25192 of 7 August 2003; now art 40); Finland in 2002: Laki transseksuaalin sukupuolen vahvistamiseta/Lag om fastställande av transsexuella personers könstillhörighet, 28 June 2002/563; the United Kingdom in 2004: Gender Recognition Act 2004 (2004 ch 7); Belgium and Spain in 2007: Arts 57, 62bis, 62ter, 99, 100 Burgerlijk Wetboek (Law of 10 May 2007, Belgisch Staatsblad 11 July 2007) and Ley 3/2007, de 15 de marzo, reguladora de la rectificación registral de la mención al sexo de las personas; Ireland in 2015: Gender Recognition Act 2015 (No 25 of 2015); Malta in 2015: Gender Identity, Gender Expression and Sex Characteristics Act 2015 (Act No XI of 2015). Other European jurisdictions have not enacted extensive statutory provisions but, rather, have dealt with these issues either by administrative procedure (eg for Austria, see Erlaß Zahl 36.250/66-IV/4/596 and Verwaltungsgerichtshof, 30 September 1997, [1999] ZfRV 185), by amending the provisions for civil registration (as is the case with Denmark’s recent Lov Nr 752 af 25.6.2014 om ændring af Lov om Det Centrale Personregister) or by action d’état (eg for France, Cour de Cassation, Assemblée plénière, 11 December 1992, Bull.civ. No 13; Gazette du Palais 1993, 180 concl).

In 1989, the European Parliament passed Resolution of 12 September 1989 on discrimination against transsexuals ([1989] OJ C 256/33) which declared ‘that human dignity and personal rights must include the right to live according to one’s sexual identity’. A few years later, the European Court of Justice in P v S and Cornwall City Council (Case C-13/94 P v S and Cornwall City Council [1996] ECR I-2143) held that the provisions in Directive 76/207 concerning discrimination on the grounds of gender in the workplace (Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, [1976] OJ L 39/40) applied to persons who had changed or intended to change their legal gender. The scope of the Directive could not ‘be confined simply to discrimination based on the fact that a person is of one or other sex. It must extend to discrimination arising from gender reassignment, which is based, essentially if not exclusively, on the sex of the person concerned’. To dismiss a person on the ground that ‘he or she intends to undergo, or has undergone, gender reassignment’ was found to be treating ‘him or her unfavourably by comparison with persons of the sex to which he or she was deemed to belong to before that operation’. In Case C-117/01 KB v National Health Service Pensions Agency ([2004] ECR I-541) the ECJ later continued this line of reasoning.

During the same period, a significant number of cases were brought before the European Court of Human Rights. The Court at first took a rather cautious approach, affording contracting states a wide margin of appreciation (see van Oosterwijck v Belgium (1981) 3 EHRR 557; Rees v United Kingdom (1986) 9 EHRR 56; B v France (1993) 16 EHRR 1; X, Y and Z v the United Kingdom (1997) 24 EHRR 143; Cossey v United Kingdom (1991) 13 EHRR 622; Sheffield and Horsham v United Kingdom (1999) 27 EHRR 163). However, in the light of the developments in European jurisdictions outlined above, this margin consistently decreased until, finally, in Christine Goodwin v United Kingdom (2002) 35 EHRR 447 and I v United Kingdom (2003) 36 EHRR 967, both decided on 11 July 2002, the ECtHR unanimously found that not allowing a change of legal gender under any circumstances (and prohibiting the person concerned from marrying once the change of legal gender was finalized) was a violation of art 8 ECHR (and art 12 ECHR). This of course means that all contracting states of the ECHR p. 1740must now provide for the possibility of change of the legal gender. However, since the decisions did not stipulate particular requirements for allowing a change of legal gender, the contracting states retain a margin of appreciation in this respect, as recently confirmed in Hämäläinen v Finland (2014) ECHR 877. Here, the Court had a first opportunity to decide on the modalities of gender recognition and, somewhat disappointingly, held that the requirement, under Finnish law, to convert an existing marriage (which in Finland until 1 March 2017 is only open to opposite sex couples) into a registered partnership (for same-sex couples) was within the margin of appreciation of the contracting state. Interestingly, the German Federal Constitutional Court ((BVerfG), 27 May 2008, 121 BVerfGE 175) and Italian Constitutional Court (No 170/2014, 11 June 2014) previously had decided that forcing a person to choose between a constitutionally protected marriage and the recognition of preferred gender identity amounted to a violation of the respective constitutions.

IV. Legal sources and current legislation

1. National

As already outlined above, following the European Court of Human Rights decision in Goodwin, all contracting states of the ECHR are now obliged to provide mechanisms for the change of legal gender. As the decision did not mandate specific requirements or procedures, the approaches in the European jurisdictions unsurprisingly vary greatly – both in substance and in procedure. Space precludes a detailed discussion, or even a list of the relevant provisions (but see Jens M Scherpe (ed), The Legal Status of Transsexual and Transgender Persons (Intersentia 2015), and Jürgen Basedow and Jens M Scherpe (eds), Transsexualität, Staatsangehörigkeit und internationales Privatrecht (Mohr Siebeck 2004)). Given the topic of this volume, the focus in the following sections will be on private international law aspects.

The underlying political, as well as practical, problem lies in the fact that it is of course the home state of every person that is responsible for issuing personal identity documents etc; as regards birth certificates, it is the state in which the birth was registered. But the place in which the person concerned lives and desires to be recognized in his or her preferred gender might be a different jurisdiction. The question for the jurisdiction concerned, therefore, is how to deal with this situation, particularly if the law of the home state does not allow for a change of legal gender, or at least not under circumstances which the particular applicant can meet.

The early statutes (such as the 1972 Swedish or the 1980 German Acts) had a very straightforward answer, which was deemed necessary at the time for reasons of →comity: only nationals of the state in which the change of legal gender was sought could apply for and be granted such a change of status. Therefore, the policy was that each state should be responsible for the recognition of the (preferred) gender of its citizens. However, this position came under increasing political and legal pressure, and the German Constitutional Court’s decision (Federal Constitutional Court of Germany (BVerfG), 18 July 2006, 116 BVerfGE 243) can be seen as a paradigm example of this movement. The German Court unanimously held that restricting recognition of preferred gender to German nationals constituted a violation of basic human rights (→Human rights and private international law), as enshrined in the German Constitution. There was no sufficient justification for treating German and foreign citizens differently. Germany could obviously not issue personal identification documents or birth certificates for foreign citizens, nor could it require foreign states to do so. The German state could, however, recognize the preferred gender of foreign nationals for all intents and purposes on the German territory and for German law. The fact that the home state might not recognize the preferred gender and that, therefore, this might cause certain difficulties was recognized by the Court. However, the judges concluded that it undoubtedly would be more important for the person concerned to be able to live according to their preferred gender in Germany. Hence any person now in Germany can apply for the recognition of their preferred gender. After Goodwin this must be the case in all European contracting states of the ECHR.

The question therefore merely is how this is to be dealt with from a private international law point of view.

One possibility (which is fairly common, not least because of legislative inertia in this field) is to have no specific regulation. That means that the starting point for civil status matters continues to be that the law of the applicant’s →nationality applies. However, should that law not allow for a change of legal gender, this would be deemed to violate the ordre public and, thus, the law of the p. 1741state in which the application is made becomes applicable so that gender recognition can be affected (see for examples on this approach in France Cour d’appel Paris, 14 June 1994, [1995] 84 Rev.crit.DIP 308; in Italy Tribunale di Milano, 4 July 2000, [2000] Famiglia e Diritto 608 ff; Tribunale di Milano, 14 July 1997, [1998] Riv.Dir.Int’le Priv. & Proc. 508 and in Austria VwGH, 30 September 1997, [1999] ZfRV 185).

Another possibility is to enact specific legislation. This legislation then might still refer to nationality as the connecting factor, which results in the ordre public exception being applied in some cases as just described (cf for example Belgium art 35ter Belgian Private International Law Act (Wet houdende het Wetboek van internationaal privaatrecht/Code de droit international privé of 16 July 2004, BS 27 July 2004, pp 57344, 57366)). The more modern approach, however, is to apply the law of the country in which the applicant is habitually resident, as for example is the case in the Netherlands (art 1: 28 para 3 NBW, requiring a minimum residency period of one year before the application) and Finland (on which see Pimenoff and Will, ‘Zum neuen finnischen Transsexuellengesetz’ [2003] StAZ 71). The United Kingdom’s Gender Recognition Act 2004 goes even further and does not expressly stipulate any specific nationality or residency requirements.

The recognition of foreign acts or decisions concerning the change of legal gender (and of subsequent →marriages etc in that gender) in most jurisdictions are not the subject of specific private international law rules and thus are governed by the general law provisions on recognition of civil status acts (for example in the Netherlands art 431 para 2 Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, available at <http://wetten.overheid.nl>) which applies to all such acts and decisions, except those from Spain for which the CIEC Convention No 29 applies (available at <www.ciec1.org/Conventions/Conv29.pdf> (French) and <http://ciec1.org/Conventions/Conv29Angl.pdf> (English), see below).

2. International

a) CIEC Convention No 29

There are currently almost no international conventions or agreements regarding the change of legal gender. The only exception is the Convention No 29 of the CIEC on the recognition of decisions recording a gender reassignment (Convention No 29 relative à la reconnaissance des décisions constatant un changement de sexe) by the International Commission on Civil Status (Commission Internationale de l’État Civil, →CIEC/ICCS (International Commission on Civil Status)), adopted on 16 September 1999 in Lisbon and signed on 12 September 2000 in Vienna – and thus almost two years before the seminal decision of the ECtHR in Goodwin v UK (Christine Goodwin v United Kingdom (2002) 35 EHRR 447) was handed down. This also explains why the substance of the CIEC Convention in many respects today appears unduly narrow. It certainly does not reflect current legal or medical developments and essentially is out of date.

So far, only five states have signed the CIEC Convention (→Austria, →Greece, the →Netherlands, →Spain and →Germany), and only Spain and the Netherlands have ratified it. Therefore, the Convention has been in force since 1 March 2011 only in those two jurisdictions. Given that legal and medical understanding of gender identity has developed significantly since the Convention was drafted, it is unlikely that there will be any future signatures, ratifications or accessions.

The purpose of the CIEC Convention is to facilitate the →recognition of administrative acts or court decisions made by competent authorities in a contracting state ‘regarding a person’s sex reassignment’, provided that the person concerned was a national of, or habitually resident in, the state where the decision was taken (art 1). Under the CIEC Convention, therefore, the nationality of an applicant for recognition is not the exclusive connecting factor and habitual residence may suffice.

The commentary to the CIEC Convention makes clear that ‘sex reassignment means a physical adaptation such that the person concerned must be considered from a legal point of view as no longer belonging to his or her original sex’, and, indeed, art 2(a) expressly refers to ‘the physical adaptation’ and states that recognition may be refused if such adaptation ‘has not been carried out and recorded in the decision in question’. While this is not defined any further, it seems to suggest that some form of gender reassignment/confirmation surgery might be required, or at the very least hormonal treatment which alters the physical appearance. While it may be doubted whether such a requirement was appropriate at the time of drafting, it certainly is not appropriate at the time this p. 1742chapter is written. This is despite the fact that some national laws continue to require such medical treatment. The decision by the German Constitutional Court on this matter (Federal Constitutional Court of Germany (BVerfG), 11 January 2011, 128 BVerfGE 109) is most instructive and represents the emerging legal view. The German Court held that requiring surgery and/or sterility for legal recognition of the preferred gender violates a person’s fundamental human rights, as the person concerned otherwise must make a ‘choice’ between accepting a violation of his or her physical integrity, through surgery that is not desired, or refusing such surgical intervention and losing the right to legal gender recognition. This essentially forces the person concerned to ‘sacrifice’ one of the protected human rights to gain the other, which is unacceptable. Similarly, the Italian Supreme Court in 2015 (Decision No 15138 of 20 July 2015) held that medical intervention and sterilization are not necessary prerequisites for legally changing one’s gender and that ‘medical treatment’ in the 1982 Act must be interpreted accordingly. Modern statutory provisions (such as the recent Danish, Dutch Maltese, Argentinian and Irish statutes, the United Kingdom’s Gender Recognition Act, as well as amendments in Sweden) no longer contain requirements for surgery etc.

According to art 2(b) and (c) of the Convention recognition may also be refused if ‘such recognition is contrary to public policy in the Contracting State in which the decision is relied on’ or ‘when the decision has been obtained by fraudulent means’.

If none of the grounds for refusal apply, art 3 obliges the respective state to ‘update’ the birth certificate of the person concerned if it has been drawn up in that state or transcribed into the civil status registers.

b) Yogyakarta Principles

The Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity (available at <www.yogyakartaprinciples.org/>) were drafted in 2006 by an international panel of 29 experts in the areas of international human rights law and sexual orientation and gender identity. The panel members came from 25 jurisdictions and included the former Irish President and United Nations High Commissioner of Human Rights Mary Robinson. The Yogyakarta Principles, named for the city of Yogyakarta in which they were drawn up, are not a convention or treaty, and cannot claim any legal authority. However, they certainly carry considerable moral and persuasive authority and have been considered and referred to by the highest courts (see eg the dissenting opinions of Judges Sajó, Keller and Lemmens in the ECtHR case of Hämäläinen v Finland (2014) ECHR 877) and government reform commissions in a number of jurisdictions (eg in Sweden, cf Departementsserien (Ds) 2012:46, pp 44–5 and 52). These Principles contain, amongst other things, the right to equality and non-discrimination and the right to recognition. They do not, however, include a specific provision relating to private international law.

Yogyakarta Principle No 3 states:

. . . Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic 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. . . .

Principle No. 3 continues that states shall:
  • . . . B. Take all necessary legislative, administrative and other measures to fully respect and legally recognise each person’s self-defined gender identity;

  • C. Take all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person’s gender/sex – including birth certificates, passports, electoral records and other documents – reflect the person’s profound self-defined gender identity;

  • D. Ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy of the person concerned;

  • E. Ensure that changes to identity documents will be recognised in all contexts where the identification or disaggregation of persons by gender is required by law or policy; . . .

The Yogyakarta Principles therefore mandate not only the recognition of an individual’s preferred gender but also the recognition of foreign decisions, acts or documents to that effect.

3. p. 1743European

There are no legislative acts on the European level directly applicable to the recognition of the preferred gender/change of legal gender. However, the European Court of Justice has extended the application of Directives and Regulations concerning gender discrimination to the situation of transsexual and transgender persons (see above).

What is clear is that following the decision of the European Court of Human Rights in Goodwin, contracting states are obliged to provide the possibility to change the legal gender of a person. However, as explained above, the particular modalities of that recognition have not been prescribed by the Strasbourg Court. Furthermore, it is also clear that once an EU Member State does recognize and document the preferred legal gender of an individual, other Member States must recognize and respect this civil status act – any other response would impede the free movement of workers and therefore violate the European Union Treaties. Similarly, the refusal to respect the preferred gender (and thus the gender identity) of a person recognized by a competent authority elsewhere surely must be a violation of the respect to private life protected by art 8 ECHR.

V. Modern trends

The legal recognition of preferred gender (ie allowing the change of the legal gender of a person) is mandatory for all contracting states of the ECHR following the Goodwin decision. However, there still appears to be a significant margin of appreciation for the states concerning the modalities, including in relation to private international law rules. While in most states there are no existing legal provisions on this issue, and thus the ‘traditional’ connecting factor of nationality determines the applicable law for status-defining elements such as gender (including an ordre public exception where the law so designated does not allow for such a change), more recently enacted statutory provisions prefer habitual residence as the connecting factor.