The paper discusses a taxonomy of the emerging constitutional right to gender recognition. Examining the constitutional case-law which is mushrooming across jurisdictions, and setting it against trans people’s demands, the paper identifies four types of the right to have one’s deep seated sense of gendered sense recognized in the law: ascriptive binary, elective binary, ascriptive non-binary, elective non-binary. The paper argues that gender recognition is now firmly established as a constitutional right, as a manifestation of widely shared mainstream constitutional principles. However, the paper also warns that the right to gender identity is, in fact, a composite category, with manifestations which are quite different from each other and often lumped together, at times regardless of their profound theoretical and socio-legal differences and implications.
This paper will consider whether and how trans experiences have been mainstreamed into the Concluding Observations and Concluding Recommendations of the UN Human Rights Treaty bodies. The paper will explore when and in what context the Treaty Bodies have engaged with State Party conduct towards trans individuals. The paper will ultimately provide not only quantitative analyses of how frequently the Treaty Bodies investigate alleged violations of trans rights; it will also offer a qualitative critique, revealing how Treaty Body intervention often reinforces harmful medical stereotypes and misunderstands key differences between sexual orientation and gender identity. While the paper will welcome greater UN engagement, it will also advocate a more nuanced approach which respects distinct and individualized experiences of gender.
The non-recognition of the gender identity of trans people is a factor of mass incarceration in the United States. The higher rates of incarceration of trans people compared to the general population are driven by discrimination-based barriers to housing, employment, education, and gender-affirming healthcare. The denial of trans identity in prison results in ill-treatments of trans detainees, including a lack of protection from assault and violence. Also, trans detainees are too often placed in harsher conditions than cis detainees. This paper argues that an effective and uniform recognition of the right to trans identity is critical for reducing the criminalization and ill-segregation of trans people. It notably argues that a full recognition of trans identity may crucially eradicate the leading psychosocial cues of crime within this population as well as guarantee their psychological and physical well-being while incarcerated in view of their successful reentry into society.
When regulating amendment of legal gender, crucial for many trans people, several European countries have conditioned it with infertility, sterilisation or castration. Sweden, the first country in the world to do so in 1972, introduced a sterilisation requirement to avoid confusion in family relations. Sterilisation was also advised by the Council of Europe in the early formalisation of a right to legal gender recognition. Such requirements have, however, recently been found to violate constitutional and human rights by national European courts and the European Court of Human Rights. How did compulsory sterilisation of trans people develop from a perceived necessity to a breach of international and constitutional law? Informed by social movement theory, the paper investigates civil society mobilisation and socio-legal developments in Sweden and Europe.
to their children with the aim of exploring the reaction of the law to changing notions and practices of ‘fatherhood’. The image of a pregnant man who gives birth to a child continues to trigger particular uproar due to the challenges it poses to gendered notions of pregnancy. Yet, as a result of medical, legal and social developments, many trans men today choose to legally transition without undertaking any physical alteration of the body. As such, they retain the ability to procreate and often do so by resorting to donor insemination. With very few exceptions, filiation laws attribute motherhood to the birth giver. Hence, trans men who give birth to their children are registered as the child’s ‘mother’, even if they are legally men and self-identify as ‘fathers’ or simply ‘parents’. What does this reveal about the legal construction of fatherhood? What makes someone a legal father today?