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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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