Why are transgender people murdered so often?

Gender diversity - trans *

Jens Scherpe

Jens Scherpe is Reader in Comparative Law at the University of Cambridge, Director of the Cambridge Family Law Research Institute (http://www.family.law.cam.ac.uk). He is the initiator and (co-) author of several large comparative law studies on family law, including the legal status of illegitimate and same-sex partnerships (2005 and 2000), matrimonial property law, marriage contracts and private autonomy (2012), a four-volume work on European family law (2016) and on the legal status of transsexual and transgender persons (2015) and intersex sexual persons (2018, forthcoming). Contact details and a complete list of publications at http://www.law.cam.ac.uk/people/academic/jm-scherpe/1231.

The legal status of trans * people has come more into focus in recent decades. Nevertheless, in many countries around the world, trans * people are not only misunderstood and discriminated against, they are also prosecuted.

Participant in a demonstration against acts of violence against trans * people in Buneos Aires, Argentina on June 28, 2017. (& copy picture alliance / ZUMAPRESS.com)

The legal status of trans * people has been discussed intensively in many countries in recent years. One reason for this is, in addition to the persistent commitment and political work of representatives of the trans * community and their supporters, the greater visibility of trans * people in the media mainstream (which is certainly also due to this work).

For example, in 2015 the novel "The Danish Girl" by David Ebershoff [1] was filmed with Oscar winner Eddie Redmayne in the lead role. He describes the life of Lili Elbe, who was one of the first people to undergo gender reassignment surgery. Caitlin Jenner, who won gold in the decathlon for the USA at the 1976 Olympics in Montreal as Bruce Jenner, was not only on the cover of Vanity Fair [2], but her life story was also titled "The Full Story" in published in the journal. Laverne Cox plays Sophie Burset in the popular Netflix series "Orange is the New Black" and was nominated for an Emmy as the first open transsexual woman. In the same series, Asia Kate Dillon appears as Brandy Epps; Asia Kate defines herself as non-binary, and also plays such a role on the "Billions" series.

These are just a few examples of the fact that trans * and other gender identities have made it into the media mainstream, at least in Western countries. Nevertheless, in many countries around the world, trans * people are not only misunderstood and discriminated against, they are even socially, politically and criminally prosecuted. Social ostracism, which, in addition to everyday discrimination when looking for a home or job, often also includes psychological and physical attacks and even murder, is sometimes played down or even covered by the responsible authorities.

Gender in the right

The own gender and gender perception as well as the lived gender role are very personal characteristics of every person. Therefore, the necessary terminology for presentation and legal discussion already causes considerable problems. Regardless of which terms are used, they cannot adequately reflect the self-perception and identity of every person. If the following terms are defined, then this is done with full awareness of this problem and in an effort to treat all persons with the greatest possible respect.

Stephen Whittle, one of the UK's foremost scholars in this field and past President of the World Professional Association for Transgender Health (WPATH) [3], defines transgender as someone who lives (or wants to live) in a gender role that does not correspond to that who was legally and socially assigned to her at birth. According to Whittle, however, transsexual is a transgender person who wishes or has already undergone gender reassignment treatment [4]. The terms defined in this way are often used because they make it clear that, contrary to the widespread but incorrect assumption (which was also the basis for the first laws in this area), not all transgender people want such treatment or expressly reject it. As will be further explained below, medical and legal issues must be kept separate from one another. The main legal concern is to change the legal gender that was entered in the state registers after birth due to the physical appearance.

Misunderstandings and pathologization

One of the most common misunderstandings about trans people is confusion with sexual orientation (and especially homosexuality). Sexual orientation is about sexual interest in other people, and not about a person's sexual sense of self (often referred to as gender identity). The latter is fundamentally independent of sexual orientation and therefore a completely different social and legal matter.

In addition, trans * people are often viewed as "mentally ill" and are even classified accordingly by some legal systems (such as Russia). Even the World Health Organization (WHO) still uses terms such as "transsexualism" and "gender identity disorder" (GID) in its guidelines (International Classification of Diseases of 1990, ICD-10). These guidelines have been revised: On June 18, 2018, the final version of the new International Classification of Diseases, the ICD-11, was presented. In the coming year, the World Health Assembly will vote on this new ICD-11, which will then come into force on January 1, 2022. "Transsexualism" and "gender identity disorder" are replaced by the term "gender incongruence" (for background information see Rauchfleisch in this dossier).

It must be admitted that such a classification has advantages for those who want access to medical treatment, as it enables access to public medical care. However, the pathologization and classification as "disease" or "disorder" contributes significantly to stigmatization and discrimination and reinforces the false assumption that this is something that must or can be "cured". Moreover, even the medical approach seems paradoxical, because - as Rachael Wallbank rightly writes - a "diagnosis" of a gender identity disorder usually consists in the finding that the gender perception of the person concerned is not based on a mental illness or confusion, but rather original is felt [5]. In any case, the international development is clearly aimed at decoupling the legal process from medical (and other) requirements for changing the legal gender (see below).

International development to change the legal gender

As far as the legal situation in Europe is concerned, the European Court of Human Rights (ECHR) laid a decisive foundation stone for the recognition of trans * people in the decision Christine Goodwin / United Kingdom in 2002. Christin Goodwin, who had been registered as male on her birth certificate, had sued for legal recognition of her female gender and the right to marry in that gender. In the judgment, it was bindingly determined for all contracting states of the European Convention on Human Rights (ECHR) that not only a change of the legal gender must be possible, but that subsequently the person concerned, among other things, with regard to a marriage (in many states still defined as gender-specific) is to be regarded as belonging to the law applicable at that time [6].

Up until the Goodwin decision, the ECHR was rather cautious in this regard in numerous earlier decisions and had always given the contracting states a wide margin of discretion [7]. However, in the case of Goodwin, the Grand Chamber of the Court of Justice unanimously ruled that a contracting state (in this case the United Kingdom) violates Art. 8 and Art. 12 ECHR if national law precludes a change of legal sex and subsequent marriage . However, the ECHR did not have to decide on the prerequisites for a change of legal gender in these proceedings, so that these basically stood and stand at the discretion of the contracting states - even if there were subsequent decisions on this (see below).

In making its decision, the ECHR relied, among other things, on international legal developments in this area. Sweden had already enacted a law allowing changing the legal sex in 1972, Germany followed in 1981, Italy in 1982, the Netherlands in 1985 and Turkey in 1988. Other states such as Belgium, Denmark, Austria and Spain developed one Legal practice that enabled a change of legal gender by administrative act or court decision. What the laws and other procedures from this early period had in common, however, were that they were restrictive and contained many legal and medical hurdles. For example, it was mostly necessary for the person concerned to be of a certain age [8] and to be unmarried (in order to avoid a same-sex marriage that was not yet recognized at the time). Even more serious were the medical prerequisites, which mostly required not only a diagnosis of a gender identity disorder and a "life in the desired gender" (so-called real life test), but also very far-reaching medical interventions, including sterilization and gender reassignment operations.

Almost all of these prerequisites did not stand up to a human rights analysis by constitutional courts and, as in Germany [9], were repealed as unconstitutional and unconstitutional [10]. Likewise, in the decision A.P., Garçon and Nicot ./. France found that the mandatory sterilization required to change the legal sex in France, against which the plaintiffs had opposed, constitutes a violation of the Convention on Human Rights and should therefore not be made a prerequisite for the change of legal sex [11]. The Inter-American Court of Human Rights went even further in a 2017 ruling, stating that surgical and hormonal treatments should not be required, as should medical evidence suggesting a "disorder" or disease [12].

Demedicalization and depathologization

International can thus show a trend towards de-medicalization and depathologization, as well as recent legislation in Sweden, Norway, Spain, Argentina, Colombia, New York, California, Ontario, Quebec, South Australia, Ireland, Belgium, France, Malta and Taiwan. Of the legal systems mentioned, Argentina was the first country in the world to make the question of changing the legal gender exclusively dependent on a declaration by the person concerned and thus did not require any further requirements, in particular no medical requirements. The same now also applies in the other legal systems mentioned. The legal gender is therefore exclusively subject to the autonomous decision and becomes the right of every individual person [13].

Despite such progress, in many legal systems there are not only reservations, but also considerable prejudice, stigmatization and repression of trans * people. For example, in most African legal systems, changing the legal gender is largely not possible and trans * people are not only legally and socially discriminated, but (as in Uganda, for example), similar to homosexual people, are even prosecuted. Even in South Africa, where same-sex marriage is at least recognized, gender reassignment hormonal treatment is still a prerequisite for changing the legal sex [14]. Likewise, in Asia (with the exception of Taiwan) [15] the legal framework (if they exist at all) is very restrictive. In Japan, for example, a change in legal sex still requires not only the dissolution of a possibly existing marriage and a "full" physical adaptation of the sex characteristics, but also that the person concerned has no children under the age of 21 - which in many cases is a long time Waiting time and unreasonable hardship [16]. The picture is mixed in the US, but many of the advances made under President Obama on trans * people's rights (including access to military service and public toilets) have been reversed by President Trump, and states can restore trans * people accordingly treat the gender assigned to them at birth.

Even in Europe, the legal and living situation of trans * people is uncertain, despite the case law of the European Court of Human Rights (ECHR). In Eastern Europe in particular, there is often still no secure legal framework, or the requirements are very restrictive. Stigmatization, discrimination and violence against trans * people are widespread [17]. For example, a law was passed in Russia in 2014 that deprived people who are considered to be mentally ill with the right to drive. This also expressly included people who were diagnosed with gender identity disorder. It was only in 2015 that the Russian Ministry of Health made it clear that this only applies in the case of trans * people if the diagnosed gender identity disorder would impair the driving of a vehicle. Nevertheless, trans * people were deliberately put in connection with mental illness. In view of the inadequate implementation of the ECHR case law and the still restrictive legislation (or the lack of legislation) in many European legal systems, further actions before the ECHR can certainly be expected soon.

Germany - soon beyond the binary legal gender system?

In an international comparison, Germany plays an interesting role. Initially, in 1981, it was one of the first countries to pass a law changing the legal gender. Initially with very restrictive conditions, which, as mentioned above, were subsequently repealed as unconstitutional by the Federal Constitutional Court [18]. What remains is the requirement that the person concerned "has been forced to live according to their ideas for at least three years", which must also be proven by expert reports. The compulsory expert opinion and this "real life test" regulation are very questionable from a legal and social point of view [19] and there is an urgent need for reform. An inter-ministerial working group has dealt with this topic [20].

In Germany, the Civil Status Act also changed in 2013, so that intersex persons can do without a gender entry as male or female. Intersex are people who were born with gender characteristics which, among other things, cannot be classified into the common categories of "male" and "female" with regard to chromosomes, genitals and / or hormonal structure or who belong to both categories [21] . The reform was controversial and was heavily criticized, especially by representatives of intersex people [22].

In 2017 the Federal Constitutional Court decided that simply leaving the gender entry open violated the Basic Law. Rather, positive recognition of a gender beyond male and female must be possible [23]. The legislature was given the task of creating a new regulation by the end of 2018 [24]. Germany is likely to become the first country in the world to end the binary legal gender order through legislation [25]. To what extent and to what extent this will be the case, whether there will be a third or even fourth gender, and above all whether the reforms will follow the international trend towards self-determination of the legal gender cannot be foreseen at the moment.