It may signal the start of a European watershed. On October 12 France’s National Assembly debated and voted on La loi sur la justice au XX1eme siècle, the law by which France determined how it would recognize the sex and gender of an individual. They came away with what had been in the works for a quarter century: removal of the requirement of forced sterilization for transgender people.1
It’s momentous because France has been a leader in human rights reforms in the last century. Most of Europe either requires sterilization or expressly forbids legal recognition of transition altogether. This has remained a blight upon Europe from the early part of the 20th century: the systemic violation of human rights upon the trans demographic through eugenics.
Most people don’t even think about this as a human rights issue. Many simply presume that imbeciles need to be kept from reproducing and may not even think about transpeople being commonly judged “unfit” in this regard. Others might even agree with this approach to eugenics.
The etymology of “eugenics” is the Greek “eu-“ or “good” plus “genes”. In other words, a society presumes upon itself the right to determine upon your reproductive rights as long as they can judge that your genes are worthy to be allowed in the societal gene pool. Eugenicists don’t consider reproductive rights to be natural or inalienable. Eugenics has nothing to do with voluntary sterilization. It has everything to do with societal control of the existence of demographics. Eugenics has been a means of destroying ethnicities like Gypsies and Jews, races like Blacks, and more recently, transgender people.
Eugenics has been an international practice in the 20th Century and the United States has its own ugly history of forced sterilization including those which courts have judged to be imbicles or perniciously promiscuous. But more often forced sterilization has been shown to be carried out against undesirables of various demographics including some without legal authority. California forcibly sterilized about 20,000 people, including a disproportionate number of Latinos. North Carolina has also been a major offender, forcibly sterilizing about 7,600 between 1929 and 1974. In the last 15 years North Carolina targeted welfare recipients, 60% Black, and 99% women. In 2013 that state approved $10 million to compensate 177 known victims of this program as reparations.2
While the United States may have eliminated most or all of those practices, Europe most often has not. Richard Köhler of Transgender Europe (TGEU) told Reuters:
“Some insist that sterilization is necessary because it proves that people are serious about changing gender. There is also the belief that if someone, who is legally a man, became pregnant and gave birth to a child, this could be a threat to social order and shake up basic perceptions of gender.”3
Gender has legal implications. So do state practices regarding those legalities. The Commissioner for Human Rights for the Council of Europe stated:
“The challenge of protecting the human rights of everyone is to apply a consistent human rights approach and not to exclude any group of people. It is clear that many transgender persons do not fully enjoy their fundamental rights both at the level of legal guarantees and that of everyday life.”4
The same Commissioner described provisions in the laws of most European states as “provisions which demand impossible choices…only… transgender persons who have undergone surgery and become irreversibly infertile have the right to change their entry in the birth register.”5
So what’s the deal here? Gender confirmation surgery, also called “sex reassignment surgery” (SRS) to date renders all transsexuals sterile. Anyone would naturally presume that anyone willing to undergo such surgery must not care to procreate. More than that, one could easily make the case that any state, and even the federal government of the United States might require this, considering what’s currently available in surgeries for transpeople, as a condition for changing gender markers on legal documents. However, such a presumption is wrong.
It’s automatically wrong because not all transsexuals have any interest in surgery. Non-operative transsexuals exist. In fact it was non-operative transsexuals Virginia Prince and Ari Kane who back in the 1970’s defined “transgender” as cross-living but not intending surgery, well before it had been popularized as an “umbrella term.”6
But even those who transition may desire to reproduce at some time, either before, during, or after transition. Plenty of transsexuals had become fathers and mothers prior to transition. Some have even stored sperm, eggs, and even embryos prior to transition for future use of spouse or surrogate. Thomas Beaty, a female-to-male transsexual observed after he gave birth to a child, “Wanting to have a biological child is neither a male nor female desire, but a human desire.”7
To date France is the largest European nation to enact reforms concerning eugenics upon the trans demographic. This follows reforms by Denmark, Malta, Ireland, and most recently, Norway.8 But the modification of French law isn’t what European trans activists have sought. It still has serious limitations. Clémence Zamora-Cruz, Steering Committee member for TGEU, told ILGA-Europe:
“This procedure does not adopt full self-determination, and therefore continues to give judges a central role in determining and accepting the validity of an applicant’s gender identity. It is also particularly painful that young persons will continue to be barred from having their gender identity recognized in France.”9
International recognition of LGBT rights has only evolved in recent decades, beginning with the case Dudgeon vs. United Kingdom (1981) in which criminalizing consensual same sex activity was deemed a violation of the right for respect for private life in the European Court of Human Rights (ECtHR).10
But in 2011 the United Nations issued a resolution specific to sexual orientation and gender identity. But UN action on this has been slow and inconsistent.11
Nevertheless, the foundation document for international law, the Universal Declaration of Human Rights (UDHR) in 1948 contained broad provisions relating to discrimination and could be interpreted as benefitting transpeople as well.12 This declaration has been adopted in the framework of international law itself through the International Covenant for Civil and Political Rights (ICCPR) also with broad provisions regarding discrimination:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”13
The same document states, “[n]o one shall be subjected . . . to cruel, inhuman or degrading treatment.”14
Within this context the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) declared in 1984:
“…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”15
These principles returned to the United Nations through the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment in 2013 with the following report to the UN Council on Human Rights:
“call[ing] upon all States to repeal any law allowing intrusive and irreversible treatments, including forced genital-normalizing surgery[,] [and] involuntary sterilization . . . , when enforced or administered without the free and informed consent of the person concerned . . . . [and] to outlaw forced or coerced sterilization in all circumstances and provide special protection to individuals belonging to marginalized groups.”16
The story of how the rights of transpeople have evolved on an international scale is far more epic. But these cases highlight the basis for their being addressed in the International Criminal Court (ICC), specifically through the Rome Statute. The statute states the following with respect to its jurisdiction on Genocide in cooperation with the United Nations:
“For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”17
While this document lacks specific mention concerning sex, sexual orientation, gender identity, or gender expression, the fact that forced sterilization of transgender people has already been made part of the international repertoire of resolutions on human rights must sooner or later gain the interest of the International Criminal Court. Conversely, the fact of eugenics being so defined as genocide is enough to give international intent regarding the practice of eugenics.
For Europe, removing the sterilization requirement for transition is an idea whose time has come. Forced sterilization of transgender people can’t remain the norm in a world in which transplantation has advanced enough to allow uterine and phallic transplants in transsexuals, technologies now being heralded with recent success in uterine transplants in typical females.18 One cannot at the same time require sterilization and also allow a transsexual to reproduce with transplanted organs. That makes no sense at all.
Given the express desire of certain religious groups to continue eugenic programs in various parts of the world, the morality concerning eugenics as genocide tests the intentions of such groups. Do they really interest themselves in the rights of all people or do they only seek their own advantage? Too often the religious prove to represent the latter.
While the French General Assembly voted to modify its law concerning forced sterilization of transpeople is a major step for that nation and consequently for the continent, much work needs to happen, especially concerning the rights of trans minors. But the step remains an important one, given France’s perennial leadership concerning the Rights of Man and its imposing population. Other European nations should follow its lead in future years.
- (n.a.) France Adopts New Legal Gender Recognition Procedure (October 12, 2016) Web: Press Release, ILGA Europe: http://ilga-europe.org/resources/news/latest-news/france-adopts-new-legal-gender-recognition-procedure. Retrieved October 15, 2016
- Cussins, Jessica. Involuntary Sterilization, Then and Now (September 5, 2013) Web: Psychology Today: https://www.psychologytoday.com/blog/genetic-crossroads/201309/involuntary-sterilization-then-and-now. Retrieved October 15, 2016/
- Guilbert, Kieran. Sterilization Threat Darkens Europe’s Transgender Quest for Identity (April 6, 2015) Web: Reuters: http://www.reuters.com/article/us-gay-rights-europe-idUSKBN0MY00X20150407. Retrieved October 15, 2016.
- Commissioner For Human Rights, supra note 1, at 7, quoted in Lee, Rebecca. Forced Sterilization and Mandatory Divorce: How a Majority of Council of Europe Member States’ Laws Regarding Gender Identity Violate the Internationally and Regionally Established Human Rights of Trans* People (2015) Berkeley Journal of International Law, Vol. 33, Issue 1, Article 9, p. 148. Berkeley Law Scholarship Repository, Web: http://dx.doi.org/. Retrieved October 15, 2016.
- Thomas Hammarberg, Forced Divorce and Sterilization—A Reality for Many Transgender Persons, The Council of Europe Commissioner’s Human Rights Comment (Aug. 31, 2010) Web: http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=74. Quoted by Lee, Rebecca, Ibid.
- Williams, Cristan. Transgender (2014) Web: Transgender Studies Quarterly: http://tsq.dukejournals.org/content/1/1-2/232.full. Retrieved October 17, 2016.
- Steren, Andrew. Pregnant Man Says Bearing Child a “Human” Desire (April 1, 2008) Web: Reuters: http://www.reuters.com/article/uk-pregnant-man-idUKN0130842320080401. Retrieved October 17, 2016.
- (n.a.) It’s Official – France Adopts a New Legal Gender Recognition Procedure! (October 12, 2016) Web: Press Release: ILGA Europe-Belgium: http://ilga-europe.org/resources/news/latest-news/france-adopts-new-legal-gender-recognition-procedure. Retrieved October 17, 2016.
- Dudgeon v. United Kingdom, 4 Eur. Ct. H.R. 149 (1981), Lee, Rebecca, p. 127.
- Human Rights Council Res. 17/19, Human Rights, Sexual Orientation and Gender Identity, 17th Sess., U.N.Doc. A/HRC/RES/17/19 (July 14, 2011). Lee, Rebecca, p. 127.
- Ibid, p. 128.
- International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No.95-20, 999 U.N.T.S. 171, Article 26; Ibid, p. 129.
- Article 7, Ibid.
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85; Ibid, p. 130.
- Report on Torture, supra note 9; Ibid.
- Rome Statute, Part II, Article 6. document A/CONF.183/9 of 17 July 1998 and corrected by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002.
- Svahn, Krister. World’s First Child Born After Uterus Transplantation (October 7, 2014) University of Gothenburg, Web: Science Daily: https://www.sciencedaily.com/releases/2014/10/141007092110.htm. Retrieved October 18, 2016.