Human rights and gender identity

Gender identity is one of the most fundamental aspects of life. The sex of a person is usually assigned at birth and becomes a social and legal fact from there on. However, a relatively small number of people experience problems with being a member of the sex recorded at birth. This can also be so for intersex persons whose bodies incorporate both or certain aspects of both male and female physiology, and at times their genital anatomy. For others, problems arise because their innate perception of themselves is not in conformity with the sex assigned to them at birth. These persons are referred to as ‘transgender’ or ‘transsexual’ persons.

The human rights situation of transgender persons has long been ignored and neglected, although the problems they face are serious and often specific to this group alone. Transgender people experience a high degree of discrimination, intolerance and outright violence. Their basic human rights are violated, including the right to life, the right to physical integrity and the right to health.

In order to understand the concept of gender identity, it is important to distinguish between the notions of ‘sex’ and ‘gender’. While ‘sex’ primarily refers to the biological difference between women and men, ‘gender’ also includes the social aspect of the difference between genders in addition to the biological element. The notion of ‘gender identity’ offers the opportunity to understand that the sex assigned to an infant at birth might not correspond with the innate gender identity the child develops when he or she grows up.

Most people legally defined as man or woman will correspondingly have a male or female gender identity. Transgender persons, however, do not develop that corresponding gender identity and may wish to change their legal, social, and physical status – or parts thereof - to correspond with their gender identity.

Abstract:

This paper relates to ‘transgender’ or ‘transsexual’ persons.

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. Therefore, there is a need to take a closer look at their situation. This Issue Paper is intended to continue the debate on transgender human rights issues and make the problems encountered by transgender people known more widely.

The paper outlines the international human rights framework that should be applied to protect the rights of transgender persons. It describes the key human rights concerns regarding transgender persons, including discrimination, intolerance and violence experienced by them. The paper concludes with examples of good practice and a set of recommendations to member states of the Council of Europe.

One obstacle in the drafting of this paper was the lack of data, research and reports on the theme.