The Court of Justice of the European Union held a significant hearing today concerning legal gender recognition for trans people in Hungary

Today, the Court of Justice of the European Union (CJEU) heard the case Deldits (C-247/23), which involves a trans refugee in Hungary who has been denied legal gender recognition (LGR) since 2021. Represented by Háttér Society and the Hungarian Helsinki Committee, the complainant, who was granted refugee status Hungary in 2014, has sought judicial review under Article 16 of the EU’s General Data Protection Regulation (GDPR).

This case raises crucial questions for the CJEU: whether GDPR mandates the rectification of personal data, including gender marker, upon request; what evidence is necessary to support such requests; and whether medical or surgical interventions must be proven.

In addition to the European Commission and advocacy groups, the governments of Hungary, France, Spain and the Netherlands participated in today’s hearing, highlighting its broader implications for LGR in Hungary.

The Budapest-Capital Regional Court’s referral to the CJEU marks a pivotal moment in the ongoing battle for trans rights in Hungary. Despite the 2018 Constitutional Court decision and the 2020 European Court of Human Rights judgement affirming these rights, the Hungarian legislature has yet to implement necessary changes. LGR for both refugees and Hungarian citizens has been banned since 2020.

According to Katrin Hugendubel, Advocacy Director at ILGA-Europe: In its final judgment, the CJEU will have the opportunity to address the discrimination faced by trans EU citizens when a gender marker that does not correspond to their gender identity is recorded in the national registrars. The case is of the utmost importance to protect the rights of trans citizens in Hungary and across the EU, notably in the context of the Hungarian ban on legal gender recognition.

The opinion of the Advocate General is expected on 12 September 2024. The CJEU’s decision is anticipated later in the autumn, and it holds significant potential to influence the legal framework for trans rights within Hungary and the broader EU.

ILGA-Europe, alongside Transgender Europe (TGEU), are providing support to Háttér Society in this case.

Read the press release by Háttér Society here.

Today, after nearly a decade of efforts from trans and gender diverse activists and organisations, and their allies, the World Health Assembly approved the newest update to the International Classification of Diseases (11^th Revision; ICD-11), which depsychopathologises (i.e. removes assertions of mental disease or disorder) trans and gender diverse people¹).

Micah Grzywnowicz, Co-Chair of the Executive Board of ILGA-Europe, says, “ICD-11 represents a monumental shift in the global health for trans and gender diverse people. In previous revisions of ICD from the time that trans-related diagnoses were added in 1965 (8^th Revision), these diagnoses were listed as either ‘Sexual deviations’ or ‘Mental and behavioural disorders’. The 11^th revision accomplishes several steps at once, including the depsychopathologisation of trans and gender diverse identities.”

Firstly, the old diagnoses, predicated on the understanding that trans identities were mental disorders in themselves, have been deleted entirely. This is extremely important, as both the old category names and their corresponding content represent a history laden with struggle, oppression, forced medicalisation, stigma, and marginalisation experienced by trans and gender diverse people in the context of healthcare.

Second, a new chapter in the 11^th Revision, “Conditions related to sexual health”, includes new trans-related diagnoses, as well as codes related to sexual and reproductive health. The new chapter is non-pathologising (i.e. it does not label its categories as “disorders” automatically). This new classification approach indicates a belief from the World Health Organisation that trans and gender diverse people are not inherently “disordered”, nor that their identities as such are related to their mental wellness.

Finally, the new categories, collectively “Gender incongruence”, are defined in ways that do not imply that the assignment of this category corresponds with a disease or a disorder. These new categories can only be assigned when the trans or gender diverse person themselves indicates distress with their body (also known as dysphoria) and are in need of medical interventions such as hormones, laser hair removal, or surgeries to address these feelings.

There is, however, a very long way to go on several fronts². Most alarmingly, as Dan Christian Ghattas, Executive Director of OII Europe notes, “ICD-11 cements the pathologistion of intersex people by introducing harmful language such as ‘disorders of sex development’, incorporating supporting and explanatory materials that are associated with human rights violations, and failing to take steps to address or eliminate human rights violations against intersex people in medical settings.” See the ICD-11 press release jointly prepared by intersex organisations worldwide for more information.

Additionally, ICD-11 introduces a problematic code: “Gender incongruence in childhood”.  Trans and gender diverse children who have not yet experienced the onset of puberty do not need medical interventions, but instead only love, support, information, and access to counselling. The category instead serves to pathologise gender curiousity, creativity, and exploration in children.

Finally, the global approval of ICD-11 represents just one step in a list of many, the next of which is national-level implementation of the Revision. National-level policymakers and stakeholders must work together to ensure the full implementation of the 11^th Revision and full coverage of all medical procedures associated with the new categories within health insurance systems.

1. ICD-11 was announced by the WHO Executive Board in June 2018, but still needed to be ratified by the Assembly to go into force.

2. For detailed information on next steps, please refer to the work of the global coordinating group on depathologisation, hosted by GATE.

On 28 November 2018, the swiss Senate of voted to criminalise hate speech and discrimination on grounds of sexual orientation, but refused to do the same for grounds of gender identity.

ILGA-Europe welcomes the extension of protections against hate speech and discrimination based on sexual orientation – this is an important step forward for lesbian, gay and bisexual citizens of Switzerland. However, the decision of the Senate to explicitly exclude grounds of gender identity constitutes a denial of this protection for trans people, and sends the message that hate speech and discrimination against them is acceptable.

This news is especially disappointing as a few months ago the Swiss parliament had specifically and proactively proposed to include both sexual orientation and gender identity in the extension of the relevant article – which had until now explicitly covered only grounds of race, ethnicity and religion – and passed the inclusion of both grounds in parliament. 

ILGA-Europe’s Rainbow Map shows that legislative and policy protection from discrimination and hate speech on grounds of sexual orientation has been improving across Europe. However, the same cannot be said for grounds of gender identity or expression, which are explicitly protected in just over a dozen countries. While some countries have merely not amended their laws in line with current international standards which provide for explicit protection from discrimination on grounds of gender identity as well as sexual orientation, the Swiss Senate has outright rejected current international standards to explicitly deny these protections for trans people.

ILGA-Europe expresses deep concern for this denial of the human rights of trans people.  We call on the Swiss authorities to amend relevant laws to include protection on grounds of gender identity and also sex characteristics, thus bringing its legislation in line with international standards and ensuring protection from hate against trans and intersex people. 

The aim of this report is to provide an overview of the different legal gender registration models which somehow cause a break in the static registration of gender as binary, and recognize gender identities as considerably more diverse as is understood under the auspices of the two categories, namely women and men.

It focuses on the legalistic and bureaucratic aspects of implementing these models in order to provide a clear picture how states can avoid unintended consequences when introducing non-binary gender categories, or, conversely, no longer registering gender for various purposes.

The report provides some stance into how non-binary gender registration models affect the human rights, the well-being and social acceptance of non-binary persons. Yet, in order to obtain further conclusive knowledge regarding this topic, more far-reaching qualitative research is necessary.

Since this report serves as a background study for the development of its own policy regarding non-binary gender registration models by ILGA-Europe, it concentrates on possible developments in member states of the Council of Europe (CoE). Nonetheless, it also discusses examples from other regions in order to determine possible best practices and lessons-learned for the European framework.

On 15 August, the Federal Government of germany adopted a draft bill on a third gender option. This bill is a missed opportunity to recognise the right to self-determination of trans, intersex and all gender-diverse people. 

German legislators were requested by the Constitutional Court, following its decision of October 2017, to amend the law on gender registration. The Court provided two possible scenarios: either the Government introduces a “third” non-binary legal gender category or it abolishes the registration of gender altogether. The mandate for drafting the German personal status law amendment lies with the Ministry of Interior, currently led by Horst Seehofer, who is one of the leadings politicians of the conservative party Christian Social Union in Bavaria (CSU).

In June, an early draft of the law was sent to main organizations working on trans and inter issues in order to receive a statement about the draft by July. The two main worrying elements were that the introduction of a “third” gender category was limited to people who present a medical certificate confirming “Differences of Sexual Development“ and that this new gender category would be named “weiteres”, which translates into “other” in English. The draft released on 15 August has improved at least on one of those two points, as it now refers to “diverse” for the name of this new category instead of “other”. However, the third gender category is still only reserved for a specific group of intersex people who can provide a specific medical certificate on “Differences of Sexual Development“.

It means that we are still very far from the introduction of a non-binary legal gender category open for all non-binary persons on the basis of self-determination, which is what the German institute of Human Rights had proposed after consulting trans and intersex groups. We’re also very far from the spirit of the Constitutional Court decision, which explicitly declares that the German Constitution protects the fundamental rights of persons identifying neither female nor male.

The law must now be adopted by the Bundestag and the Bundesrat before entering into force. We call on the Members of the Parliament to amend this draft bill so that it fully respects the fundamental rights of people who would like to make use of this law. We also call on the Government to as soon as possible prohibit unnecessary medical treatments on intersex children and to propose a revision of the current law on legal gender recognition, to bring it in line with the current human rights standards.

Discrimination on the ground of gender identity

(Application no. 49373/17), 13 February 2018

Find here the communicated case.

• The applicant was taken out of a bar allegedly on account of her appearance and gender identity. Subsequently, she lodged a criminal complaint against the owner of the bar. The Turkish courts considered it had not been proven that the accused’s act had been based on discriminatory motives.
• ILGA-Europe together with TGEU and  Kaos Gay Lesbian Cultural Research and Solidarity Association (Kaos GL) submitted the following:
  • According to Fundamental Rights Agency survey from 2015, discrimination on the grounds of gender identity was regarded as one of the most widespread forms of discrimination in Europe. It affects notably access to services, employment or health.
  • Gender identity emerges as a protected ground under international anti-discrimination law. UN Treaty Bodies and regional human rights systems consistently mention gender identity among the protected characteristics of anti-discrimination clauses. The same approach is followed through legislation or court practice in numerous European and other democratic societies. Gender identity is protected under Article 14, although the language used by the Court to date has been inconsistent. This area of jurisprudence would benefit from some clarity.
  • In Turkish law, discrimination in different fields is prohibited in different regulations and seen as a violation of rights. However, ‘sexual orientation’ and ‘gender identity’ are not explicitly protected in anti-discrimination law, leaving LGBTI people outside the scope of relevant legislation.

Human Rights and Gender Identity: Best Practice Catalogue is a civil society follow-up to the pioneering work of the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, and his 2009 Issue Paper entitled Human Rights and Gender Identity.

This joint ILGA-Europe and COC report is the first of its kind to be published about same-sex relationships and LGBT people in Georgia. It explores identities, common human rights violations, the landscape of LGBT organising, health and HIV/AIDS, and relevant legal aspects. It also provides recommendations to the Georgian government, donors, LGBT activists and international organisations.

A high level of hostility towards same-sex relationships and diverse gender identities prevails in virtually every aspect of Georgian society. Many believe them to be a disease, some see them as a sin, others as a perversion. Human rights of lesbian, gay, bisexual and transgender (LGBT) people are opposed by some prominent human rights defenders and other high-level figures.

Stigmatisation is so pervasive that most LGBT people are forced out of communities, deprived of any chance to openly express their sexual orientation or gender identity, and suffer from discrimination and hate crimes. And yet they are forced to come out and organise into associations and groups if they want to be able to stand up for who they are.

This joint ILGA-Europe and COC report is the first of its kind to be published about same-sex relationships and LGBT people in Azerbaijan. It explores identities, common human rights violations, the landscape of LGBT organising, health and HIV/AIDS, and relevant legal aspects. It also provides recommendations to the Azerbaijani government, donors, LGBT activists and international organisations.

Lesbian, gay, bisexual and transgender people are not invisible in the predominantly Muslim Azerbaijani society. Tens of transgender sex workers go into the main street of the capital city Baku every night, prominent showbiz figures barely hide their sexual orientation, mass media gives more space every day to the subject of sexual orientation and gender identities. And yet one should not be misled by this relative visibility: there is a price of estrangement from family, bullying, social exclusion, discrimination, blackmailing and hate crimes attached to it.