Human Rights and Gender Identity and Expression

Abstract

"“Realising the rights of trans people is a matter of applying human rights equally to everyone, and states have the primary responsibility to lift the barriers trans people are facing in exercising their human rights”, said today the Council of Europe Commissioner for Human Rights, Dunja Mijatović, while releasing a report entitled “Human rights and gender identity and expression”.

The report takes stock of progress, as well as long-standing and new challenges experienced by trans people, including those who are further marginalised due to their characteristics or status, recognising that trans people are a diverse group of individuals with differing experiences, identities and views.

It covers a range of issues such as non-discrimination, violence, family law, healthcare, legal gender recognition, asylum, employment, conversion practices, education, and poverty and housing. It also addresses matters that have recently become a flashpoint for hostile public debate, such as access to gender-segregated spaces and categories in various settings such as sport, sanitation, and detention, and the related framing of trans people’s rights as a fundamental threat to women’s rights. It further addresses the rights and interests of trans children and youth in various settings, the recognition and protection of non-binary people, and interconnections with gender expression.

“The greater visibility and awareness of trans people at all levels of society, and the significant progress made in providing better legal protection and recognition of the human rights of trans people across Europe, contrast with the shockingly high rates of discrimination, violence and insecurity trans people experience in their daily lives”, underlines the Commissioner.

The report comes in the context of a current backsliding in respect of human rights, where marginalised groups are increasingly instrumentalised for political gain, and where well-organised and well-funded anti-gender movements are gaining traction. “Anti-gender and anti-rights narratives ultimately undermine the rights of everyone, but their focus on so-called traditional norms around sex, gender and expression is particularly destructive of the rights of trans people”, said the Commissioner.

Within this framework, the Commissioner sets out 15 recommendations for states to achieve real positive change in the lives of trans people and ensure that they enjoy their human rights on an equal footing with everyone else.

A central paradigm is affirming trans people’s human dignity, physical and psychological integrity and personal autonomy. In this regard, among others, the Commissioner recommends providing access to legal gender recognition based on self-determination for trans people who want it. In addition, trans people should have access to trans-specific healthcare without a mental health diagnosis and without discrimination. The Commissioner also calls on member states to respect trans children’s human rights including by ensuring that their views are given due weight in accordance with age and maturity and pursuing their best interests.

In addition, the Commissioner shows that alleged conflicts of rights are often not borne out in reality and are mostly premised on harmful prejudices about trans people. “There is no such thing as granting ‘special’ rights, and realising the human rights of trans people does not undermine the rights of others. Human rights are universal: they apply equally to everyone”, emphasises the Commissioner.

The report complements the 2009 Issue Paper on “Human Rights and Gender Identity”."