* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
Current court practice requires transgender people to sue their parents to change legal gender
Even before the world embraced Caitlyn Jenner’s confirmation of her female identity, trans people in Europe were beaming with joy this summer. Denmark, Malta and Ireland have recently introduced laws that finally recognize trans people for who they are. No medical interventions are required. No expert or medical doctor has a say in this very private matter.
These countries are setting the trend; making those 22 European states holding on to the requirement for sterilisation look very old.
Exciting times indeed. Tomorrow, all eyes will be on Warsaw where the Polish Senate takes a vote on the country’s first gender recognition law. The Gender Accordance Act sailed through the Polish Parliament, the lower house, in July nearly with a two-thirds majority. Trans people are thrilled over the prospect of a law finally recognizing who they are and respecting their human rights.
The new legislation is of major importance for the daily life of trans people in Poland: 78% of Polish of them think that quicker and easier legal gender recognition procedures would allow them to live more comfortable as a transgender person, found the EU Fundamental Rights Agency (FRA, LGBT Survey 2014)
Instead of a gender recognition law trans people have to go through lengthy court procedures. Current court practice requires a trans person to sue their parents. This brings much hardship to families.
Despite this lamentable situation some Senators think it still better to not have any gender recognition law at all. Ostrich-like they think: what cannot be seen is not happening; if there is no law we can pretend that trans people are not there. Even though the European Court of Human Rights repeatedly ruled that states have to provide for legal gender recognition. Still, Senators struggle with trusting their trans citizens to take their own decisions. While the proposed law is not perfect in the eyes of Polish trans human rights organisation Trans-Fuzja Foundation, they consider it an important first step.
Those uncomfortable with granting trans people their human rights might try to hide behind the “best interest of the child”. This is true for Poland as for other countries. Only a handful of European countries recognizes that young trans people’s right to have their gender identity recognized. The Polish proposal sets a strict barrier at 18 years of age. To ensure legal certainty for children of trans people throughout their parent’s gender recognition process, the legal proposal foresees that parental rights and responsibilities remain the same.
Still for some this is not enough. For the sake of children “to have certain legal protection” a surprise amendment was introduced in the Senate that would foresee a special procedure for those with minor children. If the amendment is passed, it would be a European first to make a legal gender recognition case dependent on an opinion coming from an expert witness – child psychologist or a court-appointed guardian.
Polish trans people are already outraged by this idea. Those who currently have children are already afraid of starting their gender recognition process, not having any certainty whether or not the court will issue a positive judgment. Very often they are also afraid of losing their parental rights. Introducing extra barriers ignores that children of trans people benefit from a quick recognition of their parent’s identity, too. It gives them and their family legal certainty. The faster the psychological burden of a gender recognition process can be elevated the better – for the individual concerned and their children.
The amendment is in itself also problematic as it does not introduce how much power said psychologist or guardian will have over the gender recognition process. Can an expert witness advise the court to deny recognition? How certain is it that a court-appointed child psychologist knows anything about gender identity issues? Trans-Fuzja Foundation report problematic attitudes amongst professionals who view transition and gender recognition as a “problematic issue for a child to comprehend and to be able to thrive normally”.
Passing this kind of amendment would not only go against individual freedom, but will also – again – put a parent against their child. Only this time, it is not the trans person going against their own parents, but rather a trans parent having to weigh between their gender identity and their family.
Over the last few days Trans-Fuzja Foundation put a lot of effort into changing the senator's minds. The organization has a clear stand that the law should be passed as is without any amendments.
But, even if the law is defeated, or passed with these pruning amendment trans people in Poland found their voices over the debates in the last three years. They will not go away as they need legal recognition and protection of their identities.
With trans people gaining more social visibility and acceptance, and with progressive laws being within reach in Sweden, Norway, Finland and other European countries, time sides with the Polish trans people and their human rights.
Richard Köhler is the Senior Policy Officer at Transgender Europe. Transgender Europe is a human rights umbrella NGO working for the equality of all trans people in Europe. For more information on TGEU’s work, visit tgeu.org or follow @TGEUorg on twitter.
