Johanna Westeson - The ICHRP

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The Court found this burden to prove the medical necessity of the treatment to be disproportionate, and thus that the applicant’s respect for private life had been violated under Article 8. The Court also found that the handling of the case in German courts did not satisfy the requirements of a fair hearing, which amounted to a violation of Article 6. It is important to note that the Court did not rule that costs for gender reassignment should be covered by private or public health insurance under Article 8. 465 At stake was the level of respect or disrespect with which the German court had treated the applicant’s (selfdeclared) transsexuality. However, the finding that the German court had not respected the applicant under Article 8, led the Court to the conclusion that reimbursement should have been granted. From that can possibly be drawn that reimbursement for gender reassignment expenses is, if not a right under Article 8, a logical conclusion of the right to respect for sexual self-determination. The applicant in Schlumpf v. Switzerland 466 was a male-to-female transsexual who, similar to the previous case, had been denied reimbursement from her health insurance company for gender reassignment surgery. The reason she had been denied coverage was that according to Swiss case law, reimbursement was only mandatory in cases of ‘true transsexualism.’ True transsexualism could, according to the Swiss High Court, only be established after a so-called observation period of two years, which in this case had not elapsed before the operation took place. The applicant was 67 years old when she underwent the surgery and claimed that her age justified an exemption from the two-year rule. The Court determined that the two-year rule was likely to influence the decision to undergo the procedure of the applicant, given her age, and that the rule therefore impaired her freedom to determine her gender identity. 467 In mechanically applying the rule, without taking into consideration the particular situation of the applicant, a fair balance had not been struck between the interests of the insurance company and those of the applicant. Therefore, there had been a violation of the right to respect for private life under Article 8. The Court reaffirmed that issues of gender identity concern one of the most intimate aspects of private life, which have to be respected by states under the Convention. The Court noted again that the Convention does not guarantee reimbursement for sexchange operations. What was assessed was not the right to reimbursement per se but the rigidity of the two-year rule. 468 However, as in the Van Kück case, the Court addressed a 465 The Court noted: “In the present case, the central issue is the German courts’ application of the existing criteria on reimbursement of medical treatment to the applicant’s claim for reimbursement of the cost of gender reassignment surgery, not the legitimacy of such measures in general. Furthermore, what matters is not the entitlement to reimbursement as such, but the impact of the court decisions on the applicant’s right to respect for her sexual self-determination as one of the aspects of her right to respect for her private life” (para 78). 466 Application no 29002/06, decided on 8 January 2009. So far available in French only. Press release in English. 467 Note that in the official press release from the Court, in English, the term ‘gender identity’ is used, while in the French text of the case (the whole case has so far not been translated into English) the Court uses the term ‘identité sexuelle,’ which has a slightly narrower connotation than the English concept ‘gender identity.’ 468 It is interesting to note, for the purpose of this report, that the two-year rule is part of the WHO definition of transsexualism. For the diagnosis transsexualism to be made, “the transsexual identity should have been present persistently for at least 2 years” according to the WHO “Classification of Mental and Behavioural Disorders”, available at http://www.who.int/classifications/icd/en/bluebook.pdf. Last visited on 8 May 2010. 154
very practical aspect of gender identity issues, and stressed the need for the state to take individual, emotional concerns into consideration in order for Article 8 to be respected. 3. European Union Right to gender identity treatment does not fall within the scope of binding EU law. 4. Domestic case law and legislation In Finland, it is possible to get a change of gender legally approved without surgical procedure. According to Law No. 563 of 28 June 2002 on the determination of sexual identity of transsexual persons, 469 it will be determined that a person’s sexual identity is different from the sex registered at birth if the person demonstrates a medical examination attesting to the fact that he or she permanently finds him/herself belonging to the opposite sex; has undergone sterilization or is otherwise proven to be infertile; is over age of majority; and is unmarried and not in a registered partnership (1§). A person who is married or in a registered partnership may get their gender change approved, if the spouse or partner gives his/her consent – in those cases, a marriage will automatically be turned into a registered partnership, and a partnership into a marriage (§2). The Finnish Social Affairs and Heath Ministry has given specific instructions concerning the treatment of transsexual people in Ordinance No. 1053 of 3 December 2002 on the organization of examinations and treatment for the purposes of sex change and on the medical statement determining the gender of transsexual persons. 470 This Ordinance regulates examinations and treatment for the purposes of sex change; establishes guidelines for the multi-professional working group with specialist knowledge concerning transsexualism; and sets forth criteria for a treatment plan and for the medical statement determining the gender of transsexual persons. Preconditions for treatment are that the person finds him/herself permanently belonging to the other gender, lives according to a gender role corresponding with that other gender, and has undergone sterilization or is otherwise proven infertile. The medical examination of the person must result in a statement by a psychiatrist attesting to the fact that these criteria have been met. Types of available treatment include psychological, hormonal, and surgical treatment, in accordance with the needs defined by the person and the medical staff involved in the examination. Gender reassignment surgery is performed at only one hospital in the country: the university hospital in Helsinki, where a specialist on plastic surgery performs the procedure. In Finland, health care is given high priority as a public responsibility, and thus Finnish public health insurance provides funding for most aspects of gender reassignment treatment. According to a 2008 report, treatments such as hormone therapy, vagino-plasty, breast-augmentation, mastectomy, and hysterectomy are all covered by public health insurance; for psycho-therapy and hair removal, public funding is also occasionally available. 471 469 Official versions available in Swedish and Finnish. 470 Official versions available in Swedish and Finnish. 471 Stephen Whittle et al, Transgender EuroStudy: Legal Survey and Focus on The Transgender Experience of Health Care, Transgender Europe and ILGA-Europe, 2008, p. 22 and p. 31. 155
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SEXUAL HEALTH AND HUMAN RIGHTS: EUR
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ACKNOWLEDGMENTS This report was wri
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In choosing these eight topics, and
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amputation, or arbitrary imprisonme
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headquarters situated in Strasbourg
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unfounded applications: the applica
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margin. 18 This standard has been k
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financial, and democratic supervisi
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EU and the Euro as its currency. Th
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3. Domestic legal systems As mentio
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METHODOLOGY The WHO project on sexu
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Because this report, and the projec
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grounds for discrimination. Gender
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assume large parts of her household
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In Lustig-Prean and Beckett v. the
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asis of family responsibilities (Ar
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promote social justice and protecti
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ground that the scheme did not cove
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ut also to discrimination arising f
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Many constitutions call for equalit
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The three criminal provisions inclu
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eassignment is defined broadly, ref
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iv.4. Gender identity discriminatio
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harassed workers out of their emplo
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epealed accordingly, but the conten
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and reactive) steps to protect the
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features of sexual harassment have
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harassment to make a claim against
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4. Regional non-binding material Th
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he or she he has “no disease caus
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In other European countries, calls
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Article 10 addresses reasons for pe
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her country of origin and cannot re
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compromised medical privacy or doub
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whether or not the participants wer
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uns contrary to EU non-discriminato
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provision criminalizing sexual rela
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2B. CRIMINALIZATION OF HIV TRANSMIS
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Swedish courts had determined that
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infected the women. In the lower co
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Several prosecutions of cases of HI
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unprotected sex), and can prohibit
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The case, when reaching the Court,
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material on the internet blurring,
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a balancing act on behalf of the le
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4. Domestic legislation, case law,
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5. Concluding remarks Given the sca
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2. Council of Europe Jurisprudence
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leaves room for forced examinations
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3A. SAME-SEX MARRIAGE, PARTNERSHIP,
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The Court made clear that there is
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Page 105 and 106: violating the principle of non-disc
Page 107 and 108: held that the law was introducing a
Page 109 and 110: In France, registered partnership i
Page 111 and 112: eform. Thus, allowing for same-sex
Page 113 and 114: woman have the right to marry accor
Page 115 and 116: The law makes clear that the two pa
Page 117 and 118: opposite sex. While the Hungarian,
Page 119 and 120: In the European region, divorce is
Page 121 and 122: 5. Concluding remarks In Johnson, t
Page 123 and 124: concern that such legislation could
Page 125 and 126: exceptions: countries that have cho
Page 127 and 128: 3E. POLYGAMY/POLYGYNY 1. Introducti
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Page 131 and 132: In relation to the above, it is rel
Page 133 and 134: In the European region, there are f
Page 135 and 136: United Kingdom, 414 the Court consi
Page 137 and 138: (2) Whoever completes an act of sex
Page 139 and 140: characteristics are important featu
Page 141 and 142: discrimination, whereas laws agains
Page 143 and 144: 2. Council of Europe Jurisprudence
Page 145 and 146: It is possible but not certain that
Page 147 and 148: When an application has been grante
Page 149 and 150: Case law: partnership rights for pr
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Page 153: In a couple of decisions, the Europ
Page 157 and 158: Case law: the right to respect for
Page 159 and 160: pathologizing the issue of transsex
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Page 163 and 164: concerning their young child. Howev
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Page 167 and 168: on repeated occasions from her husb
Page 169 and 170: Similarly, the European Commission
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Page 173 and 174: [w]hoever, on repeated occasions or
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Page 177 and 178: In M.C. v. Bulgaria, 523 the applic
Page 179 and 180: With regard to the failure to effec
Page 181 and 182: Italy offers another example in the
Page 183 and 184: In Russia, the Supreme Court has pr
Page 185 and 186: testimony of the victim in rape tri
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Page 189 and 190: condemnation of immunity for marita
Page 191 and 192: some regions have exempted from pen
Page 193 and 194: The 2007 Council of Europe Conventi
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Page 197 and 198: takes place, or whether the prosecu
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Page 203 and 204: 6. Concluding remarks European laws
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event of police abuse, on the other
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Greece illustrates this trend. In 2
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(a) must treat the fact that the of
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5E. HONOR CRIMES 1. Introduction Pr
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making provision for penalties to b
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that a decision of the family assem
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(Article 62.2). Mitigation of the s
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persons, regardless of what kind of
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purpose of exploitation) (Art. 4a).
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victims will be granted “standard
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e guilty of an offence, if the traf
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expanded. For example, a victim can
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last decade, on regional as well as
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sexual health services interacts wi
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provide abortion services at a mini
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Convention. These procedures, the C
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5. Domestic legislation and case la
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pregnant woman is disabled or dies
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document the patient’s opportunit
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Generally, it has been difficult to
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2. to provide advisory and educatio
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not anonymous) treatment even thoug
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5. Concluding remarks It is difficu
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information about contraceptive met
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sex with women) is to provide insuf
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a democratic society, the Court rei
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3. European Union The issues of sex
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eduction of sexual risks, the fight
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5. Concluding remarks The European
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conveyed via texts, images, and spe
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images can be easily known from the
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considered necessary in a democrati
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3. European Union The Council of th
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In 2008, the Criminal Justice and I
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By contrast, in Baczkowski, the Cou
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however, the dominance of criminali
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Other legal regimes are more rights
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The Assembly recommends Council of
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Netherlands, when they had not prev
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number. 896 As of late October 2009
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offence only if it includes exploit
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Zoning laws are determined by local
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sexual intercourse, but other forms
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sex workers (like other adults) hav
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DOMESTIC Albania - Law no. 9669 of
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Portugal - Law No 6/2001 of 11 May
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APPENDIX II: TABLE OF CASES Within
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- Gabrielle Defrenne v Société An
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APPENDIX IV: SELECT BIBLIOGRAPHY Ha
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STI AIDS Netherlands, “A Delicate
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Johanna Westeson - The ICHRP

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