A Genealogy of Gender Identity - The March of Gender Identity through the Institutions
Part XVII
The Committee of Ministers of the Council of Europe is the ‘Executive’ of the Council of Europe, its decision-making body. It is also the first international body to use the language of gender theory in its material, which is not surprising when we consider that the ECtHR is the first international court to consider this matter as well, up to the seminal judgment of Goodwin v UK. The first use of the term gender identity is in two documents from the 1990s and it refers to the development of a gender identity in children, produced by the Steering Committee for Equality between Men and Women (CM/99/82: “what is the impact on children of experiencing abuse and of witnessing abuse (e.g. of the mother) in the home? How do boys, in particular, interpret, cope with and react to such experiences in developing their gender identity, their perceptions of gender relations and of women. How do they use or avoid violence?”). The first document in which gender identity is used with reference to gender theory and transgenderism more specifically is a meeting of Ministers’ Deputies in which recent cases in the ECtHR are discussed, inclusing cases on what was then defined as transsexualism (863rd (DH) Meeting 2 and 3 December 2003) and specifically the Van Kück case.
That case, from 2003, concerned a male who identified as a woman. He brought a civil case against his health insurance company for failing to provide coverage for his hormone treatment. Germans courts found against him on the reasoning that, although gender dysphoria was a recognised medical condition, hormones and surgery (which Van Kück also underwent) were not ‘necessary treatment’ for the condition. From the medical and psychological history of Van Kück we learn that a turning point was his infertility. The knowledge that he could not father a child seemed to have triggered his decision to take female hormones and then undergo surgery.
The Court summarises Germany’s legal position. German law on transsexuality from 1980 preceded Italian law by two years, putting these two countries at the forefront of legal recognition of transsexuality:
Sections 1 to 7 of the Transsexuals Act govern the conditions, procedures and legal consequences of a change of a transsexual’s forenames without gender reassignment surgery. Under section 1, persons may request that their forenames be changed if, on account of their transsexual orientation, they no longer feel they belong to the sex recorded in the register of births, they have been for at least three years under the constraint of living according to these tendencies, and if there is a high probability that they will not change this orientation in the future. The competent civil courts have to obtain two medical expert opinions in order to establish whether the medical conditions are met (section 4). 31. Following gender reassignment surgery, section 8 provides for a change of the sex entered in the register of births, if, in addition to the conditions laid down in section 1, the persons concerned are not married and are not able to procreate. The forenames will be changed, if proceedings under section 1 have not yet taken place. (Para. 30 of the judgment).
Mr Van Kück took the case to the EctHR as a violation of Article 6 and Article 8 of the ECHR. The Court relies heavily on the Goodwin judgment to find in favour of the applicant. Of particular note is the circular argument expressed in this section of the judgment:
The Court of Appeal also reproached the applicant with having deliberately caused her transsexuality. In evaluating her sexual identity and development, the Court of Appeal analysed her past prior to the taking of female hormones and found that she had only shown male behaviour and was thus genuinely male orientated. In doing so, the Court of Appeal, on the basis of general assumptions as to male and female behaviour, substituted its views on the most intimate feelings and experiences for those of the applicant, and this without any medical competence. It thereby required the applicant not only to prove that this orientation existed and amounted to a disease necessitating hormone treatment and gender reassignment surgery, but also to show the ‘genuine nature’ of her transsexuality although, as stated above (see paragraph 75 above), the essential nature and cause of transsexualism are uncertain. (Para. 81).
In summary since doctors do not know enough about the nature of transsexualism, any claim of transsexualism has to be taken at face value and cannot be questioned.
So the discussion on the Van Kück case is the first time gender identity is mentioned in a CoE document, and already described as ‘one of the most intimate aspects of a person’s private life’. There is no basis for conceptualising one’s gender identity as a private matter. One’s sex is not a private matter, but a characteristic immediately perceptible to the naked eye. If gender identity is a private matter, how can it replace sex? In this intellectual coup, gender identity is in fact the tool for transforming one’s sex into a private matter and preventing others from relying on the evidence of their own eyes to determine it. It is a tool of coercive control of others’ perception of reality.
Gender identity becomes a legal artefact shared around different international bodies seemingly acquiring more legal legitimacy with each reproduction. In reality there is not a proper legal or theoretical basis for this concept, as we will see the more we consider the assumptions that one needs to make in order to make sense of it.
The legal theorist Ronald Dworking compared law to a ‘chain novel’ which he described as follows:
In this enterprise a group of novelists writes a novel seriatim; each novelist in the chain interprets the chapter he has been given in order to write a new chapter, which is then added to what the next novelist receives, and so on.
For him, judges work in a continuous dialogue and creation of narrative that has to follow its own internal logic and coherence. It is a powerful metaphore, and evocative of the work of judges, especially in common law systems. It contains a fatal flaw. Once an element is incorporated into the logic of the chain novel, it becomes very difficult to dislodge it. The element acquires legitimacy and status at each new chapter of the novel. Each judicial iteration, and each legislative and administrative recognition, makes the removal of this element more difficult to accomplish. Gender identity constitutes the perfect case study for this fatal flaw. After having entered the case law of the ECtHR as we have seen, with little or no scientific evidence, it has acquired authority and legitimacy so that each following chapter of the story can just refer back to Goodwin in a validation exercise. The Goodwin case is fetishised beyond any reasonable judicial approach to previous jurisprudence and we have seen how poor the legal reasoning and how flimsy the factual basis of that case is.
In the case of gender identity, quite apart from the problems of internal consistency and legal logic that affect this concept, we are also witnessing an enormous explosion of this concept, which has colonised every area of public life and taken a disproportionate amount of space in the work of international organisations, especially in the area of human rights. If one considers that fewer of 1% of the world population can be considered transgender, and that the attention dedicated to this minority takes the attention away from issues affecting women, who are 51% of the global population, the problems with this ‘gender turn’ are obvious.
Gender identity will come to be recognised as a protected characteristic for the purpose of the anti-discrimination provision in the Convention by the ECtHR as the list of protected characteristics in the Convention is an open one:
Article 14 – Prohibition of discrimination “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The 2022 ECtHR Guide to Article 14 contains a specific section on gender identity, which is included in the ‘other status’ category. The Guide is also a useful source for a list of cases involving gender identity.
The prohibition of discrimination under Article 14 of the Convention duly covers questions related to sexual orientation and gender identity (Identoba and Others v. Georgia, 2015, para 96). The Court has also recognised that gender identity and sexual orientation were two distinctive and intimate characteristics. Any confusion between the two would therefore constitute an attack on Guide on Article 14 of the Convention (prohibition of discrimination) and on Article 1 of Protocol No. 12 (general prohibition of discrimination) one’s reputation capable of attaining a sufficient level of seriousness for touching upon such an intimate characteristic of a person. The Court has dealt with a number of cases concerning gender identity issues, notably
the right to undergo gender reassignment surgery (L. v. Lithuania, 2007);
the right to have the preferred gender legally recognised (Christine Goodwin v. the United Kingdom [GC], 2002; I. v. the United Kingdom [GC], 2002; L. v. Lithuania, 2007) and the legal requirements that must be satisfied to this end (Hämäläinen v. Finland [GC], 2014);
the right to marry (Christine Goodwin v. the United Kingdom [GC], 2002; I. v. the United Kingdom [GC], 2002);
fairness of court proceedings concerning claims for reimbursement of gender reassignment measures against a private health insurance company (Van Kück v. Germany, 2003);
the right to have one’s gender legally recognised without changing civil status (Hämäläinen v. Finland [GC], 2014);
liability for medical costs incurred in connection with a gender reassignment operation (Schlumpf v. Switzerland, 2009);
Restriction of an applicant’s parental rights and deprivation of contact with her children on gender identity grounds (A.M. and Others v. Russia, 2021).
The analysis of this case law will evidence the devolopment of the concept of (trans)gender identity by the Court, from a name to give to a distressing condition and its surgical treatment to a self-identified identity with no connection to any material or medical reality and in fact, to be protected from any requirement to a diagnosis or treatment.