Report card on the new Transgender Act: progress and room for improvement

On 1 January 2018, the new Transgender Act of 25 June 2017 entered into force, thoroughly reforming the procedure for legal gender recognition. With this Act, the Belgian legislator sought to meet the international human rights obligations concerning gender identity and gender recognition and thereby become one of the international frontrunners in the protection of transgender persons. The most important reform is without doubt the abolition of the controversial medical conditions for gender recognition that were contained in the 2007 Act on transsexuality. Another important change is that (certain) minors now also have the possibility to change their sex registration. Nevertheless, the Act contains a number of provisions that prevent Belgium from being regarded as the international example.

A more flexible procedure

Under the 2007 Act, the procedure started with a declaration to the civil registrar. The person concerned had to make a declaration of their inner conviction of an incongruence between sex and gender identity, and submit to the registrar a medical statement from a psychiatrist and a surgeon, indicating that the person had undergone gender reassignment treatment (surgery was not the starting point of the Act, but the minister did set it out that way in a circular) and was no longer able to conceive children. The registrar could refuse to draw up the deed of amendment. An appeal against this lay with the court of first instance. Any interested party and the public prosecutor (procureur des Konings) could also lodge an appeal against the gender recognition.

The new procedure, as set out in the amended Article 62bis of the Civil Code, also begins with a declaration to the civil registrar stating that one has ‘for some time been convinced that the inwardly experienced gender identity does not correspond to the sex stated in the birth certificate’, and that one wishes the legal and administrative consequences of a change of sex registration. The registrar must then explain the procedure and its consequences to the person concerned and hand over an information brochure. Next, the registrar informs the public prosecutor. The prosecutor then has three months to check whether the application is compatible with public order and to issue an opinion. If this opinion is negative, the registrar refuses to change the sex registration. The absence of an opinion counts as a positive opinion.

At least three and at most six months after the first declaration to the civil registrar, the person concerned must return to make the declaration again, after which the registrar amends the birth certificate, unless he sees a reason to refuse the gender recognition. This reason may not, however, be based on a personal conviction. The Transgender Act also made legal gender recognition possible for minors from the age of sixteen.

Right to self-determination

Argentina already did away with the medicalisation of transgender persons in 2012. Colombia, Denmark, France, Greece, Ireland, Malta, Ireland, Norway and Portugal followed suit a few years later. Belgium thus joins this list. With the Act, the legislator sought to meet the international human rights obligations incumbent on the Belgian State. Since the beginning of the 21^stcentury, various human rights actors have indeed accelerated the protection of the fundamental rights of transgender persons. Since the cases Christine Goodwin v. United Kingdom and Van Kück v. Germany, it has been settled case law of the European Court of Human Rights (ECtHR) that gender identity is one of the most intimate aspects of private life and belongs to the most essential elements of self-determination. This placed a positive obligation on the member states of the Council of Europe to provide for a gender recognition procedure. However, the ECtHR still grants national authorities a considerable margin of appreciation to determine the conditions for such gender recognition. According to the 2017 judgment A.P., Garçon and Nicot v. France, compulsory sterilisation as a condition for gender recognition does constitute a violation of Article 8 ECHR. In that same judgment, however, the Court held that other medical conditions, such as a compulsory diagnosis of transsexuality, do not necessarily constitute a disproportionate restriction of private life.

The right to self-determination regarding gender identity is also an essential principle in various instruments of international soft law, including the well-known Yogyakarta +10 Principles. The Commissioner for Human Rights, the Committee of Ministers and the Parliamentary Assembly of the Council of Europe have also adopted important recommendations calling on national legislators to implement the right to self-determination regarding gender identity by providing for a gender recognition procedure stripped of all medical conditions and other ‘abusive requirements’, such as a compulsory divorce. The medical world is likewise moving towards a complete depathologisation of transgender persons. Gender identity disorder has been removed from the Diagnostic and Statistical Manual of Mental Disorders since 2013 (DSM). Although gender dysphoria (suffering from the (physical) incongruence between gender identity and the sex assigned at birth) is still included, this diagnosis is no longer regarded as an inherent condition for being transgender.

Since the protection of human rights is the explicit starting point of the Act, it is important to analyse to what extent the Transgender Act has implemented the right to self-determination regarding gender identity.

Limits to self-determination

The Act is presented as if gender recognition is now possible merely on the basis of a simple declaration, but in practice it is not that simple. The Act contains a number of ‘locks’, justified by the need to prevent identity fraud and ‘frivolous’ applications for gender recognition.

First, the final decision on gender recognition still partly lies with someone other than the person concerned. The public prosecutor can issue a negative opinion on grounds of a breach of public order and thus prevent someone's gender recognition (Art. 62bis, §5 Civil Code). The civil registrar can also refuse to make the change (Art. 62bis, §7 Civil Code). Both must of course state reasons for their refusal, but the possibility that someone else can veto such an important and personal decision appears to restrict the right to self-determination considerably. The Council of State, legislation section, also noted this in its advice on the bill. Moreover, it is unclear on the basis of what information an application for gender recognition can be refused, since the declaration of the person concerned contains no personal information that could confirm or refute a fraudulent intention.

This degree of preventive control is not present in other countries that have taken the step towards full self-determination. In Norway, for example, gender recognition is possible by means of a mere electronic declaration and confirmation by post. This simple procedure has not led to fraud or ill-considered decisions. On the contrary: transgender persons are the demographic group most often wrongly accused of identity fraud. These findings were moreover confirmed in a recent evaluation of the Dutch transgender legislation: civil registrars had not encountered any cases of fraud, could cite only a few examples of possible fraud, and for the possible examples cited, the existence of the BSN (the counterpart of the Belgian national register number) prevents any effective fraud. Recent reports from Wallonia show that the preventive intervention by the public prosecutor is not without risks. In several judicial districts, all transgender persons who started the gender recognition procedure were systematically questioned by the police, which the Minister of Justice found to be contrary to the spirit of the Act.

Second, the Belgian gender recognition procedure includes a short waiting period. A period of at least three months must elapse between the application for gender recognition and the implementation of the change (Art. 62bis, §5 Civil Code). The parliamentary preparatory works show that the waiting period is based on the Danish transgender legislation, but a clear justification for this choice is lacking. The most logical explanation is that the new Act wants to give transgender persons time to reflect on such a far-reaching decision. However, this does not take into account the fact that transgender persons, given the heavy social stigma they experience, generally reflect for a long time before applying for gender recognition. An additional waiting period therefore seems to offer little added value. The prevention of fraud, as explained above, is not a sufficient justification either. During that three-month waiting period, the transgender person will still be confronted with an incongruence between their own gender identity and gender expression, and the official sex registration. Such a situation is one of the causes of the discrimination and reduced well-being that transgender persons often have to contend with.

Third, the most important limitation on self-determination in the context of gender recognition is that a second change of sex registration is (extremely) difficult. This must be done via the family court, and is only possible in exceptional circumstances (Art. 62bis, §10 Civil Code), such as in the case of reduced well-being due to transphobia or error. The parliamentary preparatory works, however, do not adequately explain why a second change would constitute an (insurmountable) social or legal problem. The evaluation of the Dutch transgender legislation has in any event shown that a simple ‘reversal procedure’ does not lead to more fraud or changes of sex registration. This is a very severe restriction of the right to self-determination of people who experience gender as fluid. Nevertheless, a stricter ‘reversal procedure’ also exists in other countries that have recently introduced gender recognition based on self-determination, such as Argentina and Portugal.

Finally, not every form of psycho-medicalisation of transgender persons has been completely eliminated. The new Article 62bis, §11 of the Civil Code requires 16- and 17-year-olds to first see a psychiatrist who confirms that the minor has “sufficient capacity of discernment” to take that decision. The assessment of the capacity of discernment of a non-emancipated minor by a psychiatrist is also required for other important life decisions, such as in the case of medical interventions or euthanasia. In that sense, this requirement is certainly understandable. Yet it is striking that no minimum age is required in these other cases. One may therefore wonder why gender recognition is only possible from the age of sixteen, when this is not the case for consent to medical interventions or euthanasia. The child psychiatrist of the gender team of Ghent University Hospital accordingly pointed out during the parliamentary debates that in most cases children's gender identity is, on average, established at a much younger age. Moreover, the psychiatrist only has to check whether the minor can adequately assess the legal and administrative consequences of the change in sex registration, which must also be established ex officio by the civil registrar. Finally, it can be argued that a decision on euthanasia or (irreversible) medical treatment can hardly be compared with a legal-administrative construction such as sex registration.

Full inclusion of the transgender community?

This Act also only takes binary transgender persons into account, in other words those who identify as either male or female. So-called non-binary persons, who make up roughly a quarter to a third of the trans community, are left out. In non-Western societies, too, mainly in Southeast Asia, non-binary genders have been recognised for several years.

In some countries it is already possible to use ‘X’ in addition to ‘M’ and ‘F’, although this concerns the amendment of identity documents other than the official birth certificate. The German Constitutional Court also ruled in October 2017 that failing to provide a non-binary gender option violated the constitutional right to personality and the principle of equality. The Austrian Constitutional Court followed suit in March 2018. Meanwhile, voices are also being raised that go further than the introduction of a third gender option and instead propose the abolition of gender registration.

The lack of inclusion of gender-fluid and non-binary persons led three LGBTIQ organisations, Çavaria, Rainbowhouse Brussels and Genres Pluriels, to bring an action for partial annulment of the Transgender Act before the Constitutional Court. Through this procedure, the organisations hope that the Act's principled irreversibility and binary normativity will disappear. In view of the recent rulings of other constitutional courts mentioned above, it does not seem excluded that the absence of any legal recognition of non-binary persons would be held to be discriminatory.

Report card: good, but could do better

It is positive that, with this new Transgender Act, Belgium profiles itself as a progressive state in the field of gender recognition, which will benefit Belgian transgender persons. The removal of the medical conditions is undoubtedly a very big step forward for their well-being and self-determination, and that is certainly to be welcomed. Yet this Act does not make Belgium an international frontrunner, since a number of provisions in the new Act show that certain stereotypes regarding gender diversity and transgender persons are not called into question. The waiting period, the irreversibility, and the psychiatric consultation for minors appear to aim at protecting “confused” transgender persons against their own ill-considered decisions, as well as safeguarding public order against abuse by “fraudulent” transgender persons. Although the prevention of identity fraud and frivolous decisions appear to be legitimate concerns, research shows that these fears are unfounded and lead to a disproportionate restriction of the right to self-determination regarding gender identity. The progress made is important and positive, but we must not lose sight of the fact that adjustments are possible to protect the rights of transgender persons even better.

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