This blog is based on a talk that Dr Daniela Alaattinoğlu and I delivered recently at the University of Oxford. As we delivered the talk together, we have also authored this text together. As its title suggests, the main finding of the talk was that the medical field exercises immense control over the legal gender recognition of trans persons. Even when the law is based only on self-identification, and no role has been carved out for medical professionals, they seem to exercise a great influence in the desire and ability of a trans person to get legal gender recognition. Let us look closer at the Nordic countries and India.
The Nordic countries – Sweden, Finland, Norway, Denmark and Iceland – have opted for different models when it comes to amending legally registered gender. In Sweden and Finland, medicalization is entrenched in the law. Medical gate-keeping affects or determines who is allowed to get their gender identity marker amended in personal identification documents and state administration. The table below summarizes the current legal pre-conditions in the Nordic countries.
In Sweden, the first section of the 1972 Gender Recognition Act requires, among other things, that trans applicants have acted gender-conformingly ‘since a considerable time’ and that they can ‘be assumed to live gender-conformingly in the future’. The gender-conformity of applicants is assessed and approved by the Swedish Board of Health and Welfare. While this external validation of ‘true’ trans identity to date seems to be approved by the European Court of Human Rights, it is, however, based on a medicalized understanding of who can qualify as trans. It is not, in other words, based on the applicant’s internally felt sense of gender identity (self-identification).
In Finland, on the other hand, the 2002 Act on Gender Recognition of Transsexuals also builds on medicalization of the trans existence. The first point of its first section requires applicants to, ‘present a medical report stating that they permanently identify with the opposite gender and that they live according to this gender role’. The same report should also prove that the applicants, ‘are sterilized or for other reasons infertile’. Applicants have traditionally been able to ‘opt’ for infertility through surgery or hormonal treatment. Legal gender in Finland is amended by application to the local magistrate. While the Finnish infertility requirement is clearly in breach of the European Convention on Human Rights, the psychiatric gate-keeping of access to legal gender recognition is clearly problematic, as it does not respect applicants’ self-identification. Medicalizing legal standards for gender recognition have been challenged during the last years and there are current plans by the Finnish and Swedish governments to amend them.
- Denmark, Norway and Iceland
Not all Nordic countries, however, base legal gender recognition on a medicalized understanding of trans identity. Denmark, Norway and Iceland have opted for legal gender recognition based on self-identification. This has meant decoupling the medical and legal processes from each other. For legal gender recognition, there are no medical or surgical requirements since 2014 in Denmark (there is, however, a mandatory six-month ‘reflection period’), since 2016 in Norway and since 2019 in Iceland. These current models are more in line with international human rights standards than Finland’s and Sweden’s, and might be particularly well-suited for trans people who do not wish to undergo any medical treatments.
- Medical Control of Legal Gender Amendment
Medicalization, nevertheless, seems to find its way back into public governance of trans people’s lives, affecting their legal gender recognition even in the countries that have decoupled legal and medical processes.This is particularly true for trans people who need and wish to undergo medical treatments and face difficulties in accessing them because they fail to correspond to the medicalized vision of the ‘ideal’ trans applicant with gender dysphoria. This vision is not seldom influenced by gender stereotypes about what men and women ought to look like, behave or like. In the Nordic countries, the Gender Identity Clinics are few and their medical doctors have great power when deciding who can access treatments and who cannot. If their needs for medical treatments are not met, trans persons might end up in a situation where they are unable to attain the bodily characteristics commonly associated with their gender identity. This, in turn, might discourage them from applying for legal gender recognition, even though the legal process is formally detached from the medical one.
- India Post-NALSA
The Indian legal regime started out on the path of complete decoupling of medical and legal gender identity prior to the Nordic countries. The law declared by the Supreme Court in 2014 completely de-linked medical and legal gender identity as is currently the law in Norway and Iceland. In 2014, the Indian Supreme Court announced in the NALSA case that the State agencies could not require a gender affirmation surgery or as I have argued, a psychological evaluation, before a trans person could change their gender identity. These directions of the Supreme Court had the status of law.
However, the trend of High Court cases that followed the decision showed that a person was not able to change their legally registered gender as per self-determination. Here, the cases in which a trans person wished to identify in a gender different from the one assigned at birth are of particular importance. In those cases, with some exceptions, the court always relied on a doctor’s certificate attesting that the trans applicant had undergone surgery to align their bodies as per their deeply felt gender. These surgeries are called sex re-assignment surgeries (SRS) although best practices indicate that gender affirmative surgery might better capture how trans persons experience this process. One of the pre-conditions for qualifying for a SRS is a gender dysphoria diagnosis and undergoing hormone therapy (see here and here). So in effect, though the NALSA case had clearly de-linked the medical process from the legal one, in practice, they were deeply linked.
- India- Ambiguities Created by the 2019 Act
Since December 2019, a new Act regulates gender identity for transgender persons in India. There are no reported cases under the Act yet. The Act requires transgender persons to obtain a ‘transgender certificate’ which can then be used to change identity documents. However, the Act raises the following concerns with respect to the medicalization of gender identity: 1. It does not specify whether any medical or surgical procedures will have to be undertaken to obtain the certificate; 2. It does not outlaw any medical or surgical requirements for the same; 3. The certificate only states that the applicant is transgender but does not record whether they identify as man, woman, gender-queer, Hijra, kinner or any other member of the trans community. The Kerala example discussed below does this. Further, the Act states that trans men and women can amend their certificates to identity them as men and women after surgery. However, can they do so without surgery? That is unclear based on the Act.
|Law Declared by NALSA
|What Indian High Court Cases Relied on Post-NALSA
|Surgery||√||To be announced|
|Infertility||To be announced|
|Hormone treatment||(√)||To be announced|
|Gender Dysphoria Diagnosis||(√)||To be announced|
- Medical Control of Legal Gender Recognition in India and the Nordic Countries
In comparing trans gender identity provisions in the Nordic countries and in India, we have found that the legal and the medical are deeply intertwined. In some cases, it is because the law requires it (Finland and Sweden). In other cases, though the law does not so require, the medical field – in one way or another – exercises immense control over a trans persons desire and/or ability to obtain a legal gender change (see practice in Denmark, Norway and the post-NALSA High Court cases in India).
- Norway and Kerala Implement Full Self-Determination
There is a fear of abuse that pervades any discussion on self-determination of gender identity. The fear is that if trans persons are allowed to self-identify without any medical intervention, non-trans persons will defraud the system and claim a transgender identity. Fear is not a legal reason to dwindle a rights’ entitlement. Moreover, there are best-practice examples from at least two places studied in this comparative blog post that are employing legal models based entirely on self-determination to grant legal gender recognition: Norway and Kerala.In Norway, an applicant only has to fill out and sign a form stating that they identify in a different gender than the one registered in the population registry and send it to the authorities together with a copy of their ID documentation. The form can be accessed online. There have been no reported cases of abuse in Norway of this provision. In Kerala, similarly, an online form gives an option for a person to choose between registering as man, woman and transgender, and is based completely on self-identification. Additionally, the resultant identity card contains their identity both as a transgender person (presumably for access to welfare schemes), and in their self-identified gender. The applicants never have to present themselves before any gender identity panel, court, office or department. Doing so, they can maintain their privacy and personal integrity while they legally amend their gender.
Shivani Bhat, Tessy James, and X v. Uttarakhand.