Transgender rights
A person may be considered to be a transgender person if their gender identity is inconsistent or not culturally associated with the sex they were assigned at birth and consequently also with the gender role and social status that is typically associated with that sex. They may have, or may intend to establish, a new gender status that accords with their gender identity. Transsexual is generally considered a subset of transgender, but some transsexual people reject being labelled transgender.
Globally, most legal jurisdictions recognize the two traditional gender identities and social roles, man and woman, but tend to exclude any other gender identities and expressions. However, there are some countries which recognize, by law, a third gender. There is now a greater understanding of the breadth of variation outside the typical categories of "man" and "woman", and many self-descriptions are now entering the literature, including pangender, genderqueer, polygender, and agender. Medically and socially, the term "transsexualism" is being replaced with gender identity or gender dysphoria, and terms such as transgender people, trans men, and trans women are replacing the category of transsexual people.
This raises many legal issues and aspects of being transgender. Most of these issues are generally considered a part of family law, especially the issues of marriage and the question of a transgender person benefiting from a partner's insurance or social security.
The degree of legal recognition provided to transgender people varies widely throughout the world. Many countries now legally recognise sex reassignments by permitting a change of legal gender on an individual's birth certificate. Many transsexual people have permanent surgery to change their body, sexual reassignment surgery or semi-permanently change their body by hormonal means, hormone replacement therapy. In many countries, some of these modifications are required for legal recognition. In a few, the legal aspects are directly tied to health care; i.e. the same bodies or doctors decide whether a person can move forward in their treatment and the subsequent processes automatically incorporate both matters.
In some jurisdictions, transgender people can benefit from the legal recognition given to transsexual people. In some countries, an explicit medical diagnosis of "transsexualism" is necessary. In others, a diagnosis of "gender dysphoria", or simply the fact that one has established a non-conforming gender role, can be sufficient for some or all of the legal recognition available. The DSM-V recognizes gender dysphoria as an official diagnosis.
Legislative efforts to recognise gender identity
National level
Legislative efforts to derecognise gender identity
National level
Subnational level
Africa
South Africa
The Constitution of South Africa forbids discrimination on the basis of sex, gender and sexual orientation. The Constitutional Court has indicated that "sexual orientation" includes transsexuality.In 2003 Parliament enacted the Alteration of Sex Description and Sex Status Act, which allows a transgender person who has undergone medical or surgical gender reassignment to apply to the Department of Home Affairs to have the sex description altered on their birth record. Once the birth record is altered they can be issued with a new birth certificate and identity document, and are considered "for all purposes" to be of the new sex.
Botswana
In September 2017, the Botswana High Court ruled that the refusal of the Registrar of National Registration to change a transgender man's gender marker was "unreasonable and violated his constitutional rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment". LGBT activists celebrated the ruling, describing it as a great victory. At first, the Botswana Government announced it would appeal the ruling, but decided against it in December, supplying the trans man in question with a new identity document that reflects his gender identity.A similar case, where a transgender woman sought to change her gender marker to female, was heard in December 2017. The High Court ruled that the Government must recognise her gender identity. She dedicated her victory to "every single trans diverse person in Botswana".
Asia
China
In 2009 the Chinese government made it illegal for minors to change their officially listed gender, stating that sexual reassignment surgery, available to only those over the age of twenty, was required in order to apply for a revision of their identification card and residence registration.In early 2014 the Shanxi province started allowing minors to apply for the change with the additional information of their guardian's identification card. This shift in policy allows post-surgery marriages to be recognized as heterosexual and therefore legal.
Transgender youth in China face many challenges. One study found that Chinese parents report 0.5% of their 6 to 12-year boys and 0.6% of girls often or always ‘state the wish to be the other gender’. 0.8% of 18- to 24-year-old university students who are birth-assigned males report that the ‘sex/gender I feel in my heart’ is female, while another 0.4% indicating that their perceived gender was ‘other’. Among birth-assigned females, 2.9% indicated they perceived their gender as male, while another 1.3% indicating ‘other’.
Hong Kong
The Court of Final Appeal of Hong Kong ruled that a transsexual woman has the right to marry her boyfriend. The ruling was made on 13 May 2013.On 16 September 2013, Eliana Rubashkyn a transgender woman claimed that she was discriminated and sexually abused by the customs officers, including being subjected to invasive body searches and denied usage of a female toilet, although Hong Kong officers denied the allegations. After being released, she applied for and was granted refugee status by the United Nations High Commissioner for Refugees, rendering her effectively stateless awaiting acceptance to a third country.
India
In April 2014, the Supreme Court of India declared transgender to be a 'third gender' in Indian law. The transgender community in India has a long history in India and in Hindu mythology. Justice KS Radhakrishnan noted in his decision that, "Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex", adding:Iran
Beginning in the mid-1980s, transgender individuals were officially recognized by the government and allowed to undergo sex reassignment surgery.Officially the leader of Iran's Islamic Revolution, Ayatollah Ruhollah Khomeini, issued a fatwa declaring sex reassignment surgery permissible for "diagnosed transsexuals". The government provides up to half the cost for those needing financial assistance, and a sex change is recognised on the birth certificate. Despite this, Iran's transgender people face discrimination in society. Founded in 2007 by Maryam Khatoon Molkara the Iranian Society to Support Individuals with Gender Identity Disorder is Iran's main transsexual organization.
Additionally, the Iranian government's response to homosexuality is to pressure lesbian and gay individuals, who are not in fact transsexual, towards sex reassignment surgery. Eshaghian's documentary, Be Like Others, chronicles a number of stories of Iranian gay men who feel transitioning is the only way to avoid further persecution, jail, or execution. Maryam Khatoon Molkara—who convinced Khomeini to issue the fatwa on transsexuality—confirmed that some people who undergo operations are gay rather than transsexual.
Japan
On 10 July 2003, the National Diet of Japan unanimously approved a new law that enables transsexual people to amend their legal sex. It is called 性同一性障害者の性別の取扱いの特例に関する法律 The law, effective on 16 July 2004, however, has controversial conditions which demand the applicants be both unmarried and childless. On 28 July 2004, Naha Family Court in Okinawa Prefecture returned a verdict to a transsexual woman in her 20s, allowing her family registry record or koseki to be amended as she was born a female. It is generally believed to be the first court approval under the new law. Since 2018 sex reassignment surgeries are paid for by the Japanese government, who are covered by the Japanese national health insurance as long as patients are not receiving hormone treatment and do not have any other pre-existing conditions. However applicants are required to be at least 20 years old, single, sterile, have no children under 20, as well as to undergo a psychiatric evaluation to receive a diagnosis of “Gender Identity Disorder”, also known as gender dysphoria in western countries. Once completed the patient has to only pay 30% of the surgery costs.Malaysia
There is no legislation expressly allowing transsexuals to legally change their gender in Malaysia. The relevant legislations are the Births and Deaths Registration Act 1957 and National Registration Act 1959. Therefore, judges currently exercise their discretion in interpreting the law and defining the gender. There are conflicting decisions on this matter. There is a case in 2003 where the court allowed a transsexual to change her gender indicated in the identity card, and granted a declaration that she is a female. However, in 2005, in another case, the court refused to amend the gender of a transsexual in the identity card and birth certificate. Both cases applied the United Kingdom case of Corbett v Corbett in defining legal gender.Pakistan
In 2018, Islamabad, Pakistan passed a Transgender protection bill, which implements transgender people's right in identity, and anti-discrimination laws. Laws include recognition of trans identity in legal documents such as passports, ID cards, and driver licenses, and prohibiting discrimination in employment, schools, work-place, public transit, healthcare..etc, as well as the right for inheritance in accordance to their chosen gender. Furthermore, the bill obligates the government to build protection centers and safe houses be built for the transgender community.Before the British invasion, Hindustanis considered gender ambiguity and transgender identity a norm, anti LGBT+ laws were implemented by the British to co-ordinate with theirs in England. Hindus, Muslims, Sikhs, and other religious minorities did not feel passionate hatred towards people with LGBT identity according to historical records. In many ways, the creation of laws which support the LGBT community can be regarded as an act of Decolonization
In 2009, the Pakistan Supreme Court ruled in favor of the transgender community. The landmark ruling stated that as citizens they were entitled to the equal benefit and protection of the law and called upon the government to take steps to protect transgender people from discrimination and harassment. Pakistan's chief justice Iftikhar Chaudhry was the architect of major extension of rights to Pakistan's transgender community during his term.
Fun Fact: Several transgender individuals were trusted members in Mughal courts
And there are anti-discrimination laws in the provision of goods and services for transgender or transsexual individuals
.
Jordan
The Court of cassation, the highest court in Jordan allowed a Transsexual Woman to change her legal Name and Sex to Female in 2014 after she brought forth Medical Reports from Australia. The head of the Jordanian Department of civil Status and Passports stated that two to three cases of change of sex reach the department annually, all based on Medical Reports and Court orders.Philippines
The Supreme Court of the Philippines Justice Leonardo Quisumbing on 12 September 2008, allowed Jeff Cagandahan, 27, to change both his birth certificate, gender and name from Jennifer to Jeff, to male: "We respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. In the absence of a law on the matter, the court will not dictate on respondent concerning a matter so innately private as one's sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to rare medical condition, congenital adrenal hyperplasia. In the absence of evidence that respondent is an 'incompetent,' and in the absence of evidence to show that classifying respondent as a male will harm other members of society the court affirms as valid and justified the respondent's position and his personal judgment of being a male." Court records showed that – at 6, he had small ovaries; at 13, his ovarian structure was minimized and he had no breasts and did not menstruate. The psychiatrist testified that "he has both male and female sex organs, but was genetically female, and that since his body secreted male hormones, his female organs did not develop normally." The Philippines National Institutes of Health said "people with congenital adrenal hyperplasia lack an enzyme needed by the adrenal gland to make the hormones cortisol and aldosterone.This, however, only applies to cases involving congenital adrenal hyperplasia and other intersex situations. The Philippine Supreme Court has also ruled that Filipino citizens do not have the right to legally change their sex on official documents if they are transsexual and have undergone sexual reassignment surgery. The Court said that if the man, now anatomically a female, were to be allowed to legally change his sex it would have "serious and wide-ranging legal and public policy consequences," citing the institution of marriage in particular.
South Korea
In South Korea, it is possible for transgender individuals to change their legal gender, although it depends on the decision of the judge for each case. Since the 1990s, however, it has been approved in most of the cases. The legal system in Korea does not prevent marriage once a person has changed their legal gender.In 2006, the Supreme Court of Korea ruled that transsexuals have the right to alter their legal papers to reflect their reassigned sex. A trans woman can be registered, not only as female, but also as being "born as a woman."
While same-sex marriage is not approved by South Korean law, a transsexual woman obtains the marital status of 'female' automatically when she marries to a man, even if she has previously been designated as "male."
In 2013 a court ruled that transsexuals can change their legal sex without undergoing genital surgery.
Taiwan
Transgender people in Taiwan need to undergo genital surgery in order to register gender change on both the identity card and the birth certificate. The surgery requires approval of two psychiatrists, and the procedure is not covered by the National Health Insurance. The government conducted public consultations on the elimination of surgery requirements back in 2015, but no concrete changes have been made since then.In 2018, the government unveiled the new chip-embedded identity card, scheduled to be issued in late 2020. Gender will not be explicitly displayed on the physical card, although the second digit of national identification number reveals gender information anyway. With the inception of new identity card, a third gender option will be available to transgender persons alike. However, it raises concerns that the practice could stigmatize transgender persons, instead of respecting their gender identity. Details of the third-gender option policy are yet to be released.
After same-sex marriage law became effective on May 24, 2019, transgender persons could marry a person of the same registered gender.
Europe
A majority of countries in Europe give transgender people the right to at least change their first name, most of which also provide a way of changing birth certificates. Several European countries recognize the right of transgender people to marry in accordance with their post-operative sex. Croatia, Czech Republic, Denmark, Finland, France, Germany, Ireland, Italy, the Netherlands, Norway, Poland, Portugal, Romania, Sweden, Spain, and the United Kingdom all recognize this right. The Convention on the recognition of decisions regarding a sex change provides regulations for mutual recognition of sex change decisions and has been signed by five European countries and ratified by Spain and the Netherlands.Finland
In Finland, people wishing to change their legal gender must be sterilized or "for some other reason infertile". A recommendation from the UN Human Rights Council to eliminate the sterilization requirement was rejected by the Finnish government in 2017.France
In France, there is currently no law that defines sex-change procedures. However, it is possible to ask for a sex- or a name change before the Court. The judge decides to grant or refuse the change.Germany
Since 1980, Germany has a law that regulates the change of first names and legal gender. It is called Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen . Requirements that applicants for a change in gender were infertile post-surgery declared unconstitutional by supreme court ruling in a 2011.Greece
On 10 October 2017, the Greek Parliament passed, by a comfortable majority, the Legal Gender Recognition Bill which grants the transgender people in Greece the right to change their legal gender freely by abolishing any conditions and requirements, such as undergoing any medical interventions, sex reassignment surgeries or sterilisation procedures to have their gender legally recognized on their IDs. The bill grants this right to anyone aged 17 and older. However, even underaged children between the age of 15 and 17 will have access to the legal gender recognition process, but under certain conditions, such as obtaining a certificate from a medical council. The bill was opposed by the Holy Synod of the Orthodox Church, the Communist Party of Greece, Golden Dawn and New Democracy.The Legal Gender Recognition Bill followed a 20 July 2016 decision of the County Court of Athens, which ruled that a person who wants to change their legal gender on the Registry Office files is no longer obliged to already have undergone a sex reassignment surgery. This decision was applied by the Court on a case-by-case basis.
Republic of Ireland
In the Republic of Ireland, it was not possible for a transsexual person to alter their birth certificate until 2015. The High Court took a case by Lydia Foy in 2002 that was turned down, as a birth certificate was deemed to be a historical document.On July 15, 2015, Ireland passed the Gender Recognition Act of 2015 that allows legal gender changes without the requirement of medical intervention or assessment by the state. Such change is possible through self-determination for any person aged 18 or over resident in Ireland and registered on Irish registers of birth or adoption. Persons aged 16 to 18 years must secure a court order to exempt them from the normal requirement to be at least 18. Ireland is one of four legal jurisdictions in the world where people may legally change gender through self-determination.
Poland
The first milestone sentence in the case of gender shifting was given by Warsaw's Voivode Court in 1964. The court reasoned that it be possible, in face of civil procedure and acting on civil registry records, to change one's legal gender after their genital reassignment surgery had been conducted. In 1983, the Supreme Court ruled that in some cases, when the attributes of the individual's preferred gender were predominant, it is possible to change one's legal gender even before genital reassignment surgery.In 2011, Anna Grodzka, the first transgender MP in the history of Europe who underwent a genital reassignment operation was appointed. In the Polish Parliamentary Election 2011 she gained 19 337 votes in the City of Kraków and came sixth in her electoral district. Grodzka was reportedly the only transsexual person with ministerial responsibilities in the world since 10 November 2011.
Portugal
The law allows an adult person to change their legal gender without any requirements. Minors aged 16 and 17 are able to do so with parental consent and a psychological opinion, confirming that their decision has been taken freely and without any outside pressure. The law also prohibits both direct and indirect discrimination based on gender identity, gender expression and sex characteristics, and bans non-consensual sex assignment treatment and/or surgical intervention on intersex childrenRomania
In Romania it is legal for transgender people to change their first name to reflect their gender identity based on personal choice. Since 1996, it has been possible for someone who has gone through genital reassignment surgery to change their legal gender in order to reflect their post-operative sex. Transgender people then have the right to marry in accordance with their post-operative sex.United Kingdom
The Sex Discrimination Act 1975 made it illegal to discriminate on the ground of anatomical sex in employment, education, and the provision of housing, goods, facilities and services. The Equality Act 2006 introduced the Gender Equality Duty in Scotland, which made public bodies obliged to take seriously the threat of harassment or discrimination of transsexual people in various situations. In 2008, the Sex Discrimination Regulations extended existing regulation to outlaw discrimination when providing goods or services to transsexual people. The Equality Act 2010 officially adds "gender reassignment" as a "protected characteristic.".The Gender Recognition Act 2004 effectively granted full legal recognition for binary transgender people. In contrast to some systems elsewhere in the world, the Gender Recognition process does not require applicants to be post-operative. They need only demonstrate that they have suffered gender dysphoria, have lived as "your new gender" for two years, and intend to continue doing so until death.
North America
Canada
Jurisdiction over legal classification of sex in Canada is assigned to the provinces and territories. This includes legal change of gender classification.And on June 19, 2017 Bill C-16, after having passed the legislative process in the House of Commons of Canada and the Senate of Canada, became law upon receiving Royal Assent which put it into immediate force. The law updated the Canadian Human Rights Act and the Criminal Code to include "gender identity and gender expression" as protected grounds from discrimination, hate publications and advocating genocide. The bill also added "gender identity and expression" to the list of aggravating factors in sentencing, where the accused commits a criminal offence against an individual because of those personal characteristics. Similar transgender laws also exist in all the provinces and territories. Conversion therapy is banned in the provinces of Manitoba, Ontario, and Nova Scotia, and the city of Vancouver, though the Nova Scotia law is hampered by a clause that allows "mature minors" between the ages of 16 and 18 to consent.
Mexico
Jurisdiction over legal classification of sex in Mexico is assigned to the states and Mexico City. This includes legal change of gender classification.On 13 March 2004, amendments to the Mexico City Civil Code that allow transgender people to change their gender and name on their birth certificates, took effect.
In September 2008, the PRD-controlled Mexico City Legislative Assembly approved a law, in a 37-17 vote, making gender changes easier for transgender people.
On 13 November 2014, the Legislative Assembly of Mexico City unanimously approved a gender identity law. The law makes it easier for transgender people to change their legal gender. Under the new law, they simply have to notify the Civil Registry that they wish to change the gender information on their birth certificates. Sex reassignment surgery, psychological therapies or any other type of diagnosis are no longer required. The law took effect in early 2015. On 13 July 2017, the Michoacán Congress approved a gender identity law. Nayarit approved a similar law on 20 July 2017.
United States
On June 15, 2020, the Supreme Court of the United States ruled in Bostock v. Clayton County, Georgia that for the purposes of Title VII of the Civil Rights Act of 1964, discrimination on the basis of transgender status is also discrimination because of sex.Regardless of the legal sex classification determined by a state or territory, the federal government may make its own determination of sex classification for federally issued documents. For instance, the U.S. Department of State requires a medical certification of "appropriate clinical treatment for transition to the updated gender " to amend the gender designation on a U.S. passport, but sex reassignment surgery is not a requirement to obtain a U.S. passport in the updated gender. This leaves transgender Americans subject to inconsistent and often discriminatory regulations when seeking healthcare. Brooklyn Liberation March, the largest transgender-rights demonstration in LGBTQ history, took place on June 14, 2020 stretching from Grand Army Plaza to Fort Greene, Brooklyn, focused on supporting Black transgender lives, drawing an estimated 15,000 to 20,000 participants.
South America
has some of the most progressive legislation in the world regarding transgender rights. Bolivia and Ecuador are among the few countries worldwide that offer constitutional protection against discrimination based on gender identity. Transgender persons are allowed to change their name and gender on legal documents in a majority of countries. Argentina, Brazil, Bolivia, Chile, Colombia, Ecuador and Uruguay allow individuals to change their name and gender without undergoing medical treatment, sterilization or judicial permission. In Peru a judicial order is required.Argentina
In 2012 the Argentine Congress passed the Ley de Género, which allows individuals over 18 to change the gender marker in their DNI on the basis of a written declaration only. Argentina thus became the first country to adopt a gender recognition policy based entirely on individual autonomy, without any requirement for third party diagnosis, surgeries or obstacles of any type.Bolivia
The Gender Identity law allows individuals over 18 to legally change their name, gender and photography on legal documents. No surgeries or judicial order are required. The law took effect on August 1, 2016.Brazil
Changing legal gender assignment in Brazil is legal according to the Superior Court of Justice of Brazil, as stated in a decision rendered on October 17, 2009.And in 2008, Brazil's public health system started providing free sexual reassignment operations in compliance with a court order. Federal prosecutors had argued that sexual reassignment surgery was covered under a constitutional clause guaranteeing medical care as a basic right.
Patients must be at least 18 years old and diagnosed as transsexuals with no other personality disorders, and must undergo psychological evaluation with a multidisciplinary team for at least two years, begins with 16 years old.
The national average is of 100 surgeries per year, according to the Ministry of Health of Brazil.
Chile
Chile bans all discrimination and hate crimes based on gender identity and gender expression. The Gender Identity Law, in effect since 2019, recognizes the right to self-perceived gender identity, allowing people over 14 years to change their name and gender on all official documents without prohibitive requirements. Since 1974, the change of gender had been possible in the country through a judicial process.Colombia
Since 2015, a Colombian person may change their legal gender and name manifesting their solemn will before a notar, no surgeries or judicial order required.Ecuador
Since 2016, Ecuadorians are allowed to change their birth name and gender identity on legal documents and national ID cards. The person who wants to change the word "sex" for "gender" in the identity card shall present two witnesses to accredit the self-determination of the applicant.Peru
In Peru transgender persons can change their legal gender and name after complying with certain requirements that may become psychological and psychiatric evaluations, a medical intervention or sex reassignment surgery. A judicial permission is required.In November 2016, the Constitutional Court of Peru determined that transsexuality is not a pathology and recognized the right to gender identity. However, favorable judicial decisions on gender change have been appealed.
Uruguay
Since 2019, transgender people can self-identify their gender and update their legal name, without approval from a judge after the approval of the Comprehensive Law for Trans Persons. The new law creates scholarships for trans people to access education, a monthly pension for transgender people born before 1975 and also requires government services to employ a minimum of 1% of the transgender population. It also now acknowledges the self-identification of non-binary people.In October 2009, lawmakers passed the Gender identity law allowing transgender people over the age of 18 to change their name and legal gender on all official documents. Surgery, diagnosis or hormone therapy were not a requirement but a judicial permission was required.
Oceania
Australia
Birth certificates are within the jurisdiction of the states, whereas marriage and passports are matters for the Commonwealth. All Australian jurisdictions now recognise the affirmed sex of an individual, with varying requirements. In the landmark case New South Wales Registrar of Births, Deaths and Marriages v Norrie the High Court of Australia held that the Births Deaths and Marriages Registration Act 1995 did not require a person having undergone genital reassignment surgery to identify as either a man or a woman. The ruling permits a gender registration of "non-specific".Passports are issued in the preferred gender, without requiring a change to birth certificates or citizenship certificates. A letter is needed from a medical practitioner which certifies that the person has had or is receiving appropriate treatment.
Australia was the only country in the world to require the involvement and approval of the judiciary with respect to allowing transgender children access to hormone replacement therapy. This ended in late 2017, when the Family Court issued a landmark ruling establishing that, in cases where there is no dispute between a child, their parents, and their treating doctors, hormone treatment can be prescribed without court permission.