International Approach To Transgender Laws

INTRODUCTION

Transgender are those people whose identity does not match with the sex which they have assigned at birth. Transgender use many different terms to describe them. For example, sometimes it is shortened to just Trans, or tarns male/female. It’s always best to use the language and labels that the person prefers. Some transgenders reject the traditional ways of gender i.e., male and female, so they choose just to be called transgender or genderqueer or gender fluid or something else.

They express their gender identities in many different ways. Some of them use their dressing sense, behavior, or manners to live as it feels to them. Some of them went into surgery to change their body so that it can match their behavior or identity.

When they have distress, unhappiness, and anxiety about their identity it is called “GENDER DYSPHORIA”. A transgender may be formally diagnosed to treat this disorder. Psychologists used to call this “GENDER IDENTITY DISORDER”. This disorder can cause mental illness as well as emotional illness.

In the matter of sexual orientation, the transgender can be gay, lesbian, bisexual or just like someone who’s cisgender. They have some health care needs as cisgender people, such as basic physical exams, preventive care, and STD testing. Transgender who want to feminize their bodies and can’t access surgeries may get people who aren’t nurses or doctors to inject “street” silicone into their bodies. Street silicone might give your body feminine curves, but it's extremely dangerous and can lead to infections or even death. Some people who use street silicone eventually need to have it removed from their bodies by a doctor.

Being a transgender they face many problems such as:

 How to fill out forms that require checking female or male and even which public bathrooms to use.

 After realization, they feel different from others which is very difficult for them. They face rejection, discrimination, and even anger from people who don’t understand transgender identity.

 Transgender teens can face situations that can feel hostile and be unfair, this may lead to feelings of depression and isolation.

INTERNATIONAL ASPECT

IRAN was the first country that recognized the third gender at the beginning of the mid-1980s, by the government and the government allowed undergoing sex reassignment surgery. The government provided half the cost for those who need financial assistance to undergo the surgery.

After IRAN in 1997, ARGENTINA created the Asociación de Lucha por la Identidad Travesti-Transsexual to push for the rights and equal treatment of transgender people in Argentina. In 2006, the organization gained a key legal victory in the Supreme Court when it was able to overturn a lower court’s ruling that prohibited transgender people from campaigning for equal rights. The following year, they won another case in the Supreme Court in which a seventeen-year-old was officially granted the legal right to undergo a gender reassignment surgery and change their legal documents accordingly. Argentina broke ground in 2012 with a law that is considered the gold standard for legal gender recognition: anyone over the age of 18 can choose their gender identity, undergo gender reassignment, and revise official documents without any prior judicial or medical approval, and children can do so with the consent of their legal representatives or through summary proceedings before a judge.

GERMANY became the first European country to officially recognize a "third gender" category, this time on birth certificates for intersex infants. If their children show both male and female characteristics, parents can now mark their birth certificates with an "X," for undetermined gender. The law gives the possibility for intersex children (as many as 1 in 2,000 babies) to decide their gender identity once they reach adult age, and not to be labeled male or female at birth without their will. Until now, parents had only one week to register their intersex baby as a boy or a girl, which often led to forced surgery on the child's genitalia.

The Supreme Court of U.S. in OBERGEFELL, et al V. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al observed that until 20th century, same-sex intimacy had long been condemned as immoral by the state itself in most western nations and a belief was often embodied in the criminal law and for this reason, homosexuals, among others, were not deemed to have dignity in their own distinct identity. In the case of LAWRENCE v. TEXAS, the U.S. Supreme Court declared that homosexuals were entitled to respect for their private lives and that the state could not demean their existence or control their destiny by making their private sexual conduct a crime, for their right to liberty under the due process clause gives them the full right to engage in their conduct without the intervention of the state.

GOODRIDGE V. DEPT. PF PUBLIC HEALTH is a landmark Massachusetts Supreme Judicial Court case in which the Court held that the Massachusetts Constitution requires the state to legally recognize same-sex marriage. November 18, 2003, the decision was the first by a U.S. state's highest court to find that same-sex couples had the right to marry. Despite numerous attempts to delay the ruling, and to reverse it, the first marriage licenses were issued to same-sex couples on May 17, 2004, and the ruling has been in full effect since that date.

CONVENTIONS

After adopting the third gender by many countries some conventions also took the initiative for the transgender in the society. Some of the conventions are:

Brazilian convention

In April 2003, Brazil presented a resolution prohibiting discrimination on the basis of sexual orientation to the United Nations Commission on Human Rights.

1. Expresses deep concern at the occurrence of violations of human rights in the world against persons on the grounds of their sexual orientation;
2. Stresses that human rights and fundamental freedoms are the birthrights of all human beings, that the universal nature of these rights and freedoms is beyond question and that the enjoyment of such rights and freedoms should not be hindered in any way on the grounds of sexual orientation;
3. Calls upon all States to promote and protect the human rights of all persons regardless of their sexual orientation;

Sexual Orientation and Gender Identity at the United Nations

A formal UN declaration on sexual orientation and gender identity was discussed in the General Assembly on 18 December 2008. A joint statement presented at the General Assembly by Argentina on behalf of 66 states in December 2008. Statements remain open for signature, and neither has been officially adopted by the General Assembly.

On June 17, 2011, the United Nations Human Rights Council in a Resolution on Human Rights, Sexual Orientation and Gender Identity, adopted by a vote of 23 in favor, 19 against, and 3 abstentions, requested the commission of a study to document discriminatory laws and acts of violence against people based on their sexual orientation and gender identity.[20]

The 2011 Resolution was intended to shed light on how international human rights could be used to prevent acts of violence and discrimination against people of diverse sexual orientations.

On 15 December 2011, the first Report on human rights of LGBT people was released by the Office of the United Nations High Commissioner for Human Rights.

UDHR (UNIVERSAL DECLARATION OF HUMAN RIGHTS)

Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth, or another status

Sexual orientation can be read into Article 2 as "other status" or alternatively as falling under "sex".

Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence nor to attacks upon his honor and reputation.

ICCPR(INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS)

Article 9: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Article 17: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.

The opening words of the Universal Declaration of Human Rights are unequivocal: “All human beings are born free and equal in dignity and rights.” The equality and non-discrimination guarantee provided by international human rights law applies to all people, regardless of sex, sexual orientation and gender identity, or “other status.” There is no fine print, no hidden exemption clause, in any of our human rights treaties that might allow a State to guarantee full rights to some but withhold them from others purely on the basis of sexual orientation and gender identity. Moreover, the United Nations human rights treaty bodies have confirmed that sexual orientation and gender identity are included among prohibited grounds of discrimination under international human rights law. This means that it is unlawful to make any distinction of people’s rights based on the fact that they are lesbian, gay, bisexual, or transgender (LGBT), just as it is unlawful to do so base on skin color, race, sex, religion or any other status. This position has been confirmed repeatedly in decisions and general guidance issued by several treaty bodies, such as the United Nations Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, the Committee against Torture, and the Committee on the Elimination of Discrimination against Women.

In Toonen v Australia the United Nations Human Rights Committee (UNHRC) found that the reference to "sex" in Article 2 of the ICCPR included sexual orientation, thereby making sexual orientation prohibited grounds of distinction in respect of the enjoyment of rights under the ICCPR.

RECENT DEVELOPMENTS

(Geneva) – The United Nations Human Rights Council, in a defining vote, adopted a resolution on June 30, 2016, on “Protection against violence and discrimination based on sexual orientation, and gender identity,” to mandate the appointment of an independent expert on the subject. It is a historic victory for the human rights of anyone at risk of discrimination and violence because of their sexual orientation or gender identity, a coalition of human rights groups said.

The conceptualization of transgender identity as a mental disorder has contributed to precarious legal status, human rights violations, and barriers to appropriate health care among transgender people. The proposed re-conceptualization of categories related to transgender identity in WHO's forthcoming International Classification of Diseases (ICD)-11 removes categories related to transgender identity from the classification of mental disorders, in part based on the idea that these conditions do not satisfy the definitional requirements of mental disorders.

On 25th May 2019 The United Nations health agency announced in its 11th International Classification of Diseases (ICD) catalog that "gender incongruence" the organization's term for people whose gender identity is different from the gender they were assigned at birth has been moved out of the mental disorders chapter and into the organization's sexual health chapter.

The change was presented at the World Health Assembly, the WHO's legislative body, in 2019 and will go into effect on January 1, 2022.

[The author, Jyotsana Sachdev is a third-year student at JIMS, affiliated with Guru Gobind Singh Indraprastha University]

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