Transgender EuroStudy – Legal Survey and Focus ... - ILGA Europe

27 April 2008
In France, Germany, Greece, and sometimes in Austria, a new certificate will not be provided but
the old one will be amended by dated annotations on the original. This has the effect of failing to
protect a person’s privacy.
Again, we have the same concerns about the requirements for permanent sterility before
accessing a new or amended birth certificate. Following on from this, there are still several countries
that do not allow trans people, even those who have a new birth certificate, to marry a member of
their birth sex, although sixteen (16) countries do permit this.
Extent of Recognition and
Protection
Denmark, Finland, Germany and Hungary provide broad transsexual and transgender
protection against discrimination, the law in the Netherlands is expressed in terms of ‘transgender’ but
in practice it is held to include transsexual people. Both the Czech Republic and Poland have
constitutional or codified general anti-discrimination laws, which do not use the words transsexual or
transgender, but which are regarded as providing protection, although in reality trans people and their
legal advisors are probably unaware of this potential protection. Nine (9) countries provide no
protection, despite the decision in P v S and Cornwall County Council 41 in 1996, which really does show
the need for the EU Commission to put pressure on Member States.
On 21 December 2007, Member States were required to implement the Directive on the Principle
of Equal Treatment between Men and Women in the Access to and Supply of Goods and Services
(2004/113/EC), into national law. This protection includes trans people who are “intending to undergo,
undergoing or who have undergone gender reassignment”. Very few, if any, have done so at the time
of writing; it seems that States choose the European law they want, but simply ignore the laws they do
not want.
Only four (4) countries, Belgium, the UK, Spain and Sweden provide specific privacy protection
for trans people in their new gender role. In the UK it only comes into place after the person has
obtained a new birth certificate or equivalent.
There are only six (6) countries where trans people are likely to retain access to their children
after they have been divorced, which is clearly very problematic. As Richard Green’s research has
repeatedly shown over the last 40 years, on a long term follow up on the children of trans parents:
“Available evidence does not support concerns that a parent’s transsexualism directly
adversely impacts on the children. By contrast, there is extensive clinical experience showing
the detriment to children in consequence of terminated contact with a parent after divorce.” 42
Finally, only three (3) countries provide specific pension provision after a legal change of gender
despite the ECJ decision in Richards 43 and the ECHR decision in Grant 44 , and only two (2) - Belgium and
Denmark - provide specific protection against transphobic hate crime. In the UK, transgender hate
crime is now counted in official police hate crime statistics, but at the last minute late in 2007, the
Government withdrew amendments to create ‘incitement to transphobic hatred’ protection from the
Criminal Justice (Amendment) Bill.
41
Supra at note 4.
42
Green R., (1998)
Transsexuals´ Children.
IJT 2,4,
http://www.symposion.
com/ijt/ijtc0601.htm.
43
Supra at note 4.
44
Supra at Note 5.