Transcript Patients’ Rights in Europe

Helena Pereira de Melo
[email protected]
October 2014
1
2
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“All
citizenship is
sexual citizenship”
4
1.
2.
Acquisition of rights
Sex anti-discrimination law
5
 Does
not define “sex” nor
“gender”
 Influenced by the vision of “man”
and
“woman”
and
the
heterosexual family model.
6


Based upon the heterosexual and male
privilege
Hetronormativity - originates inequality in
family life, political participation rights,
access to welfare entitlements and
employment conditions
7
“Gender is serious
business. If you have
broken the rules, you
will know about it”
8
9
“People should be free to
change,
either
temporarily
or
permanently, the sex
type to which they were
assigned since infancy”
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a)
b)
c)
d)
e)
Transexuals – want to have sex
reassignment surgery
Transgenderists – live in the gender role
associated with other sex without wanting
to have surgery
Bigender persons – identify as both man
and women
Drag queens – men who dress in women’s
clothes
Kings – women who dress in men’s clothes
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12
a)
b)
c)
d)
e)
f)
Pathologised as being “mentally ill”;
Forced to divorced or to be sterilized;
Cannot marry and found a family;
Dismissed from their work;
Rejected by their family;
Victims of hate crimes…
13
14
Gender identity does not align with the
sex assigned at birth
 Through medical intervention they want
to alter their external physical
appearance to match their internal
gender identity
 Mental illness - WHO

15
A person identifies
completely with the
gender that the
body
does
not
biologically
represent.
16
 Hormonal and surgical treatment
 Male-to-female – transwoman
 Female-to-male - transman
17
18
“the
transsexual
movement
reproduces
and
rebels
against
gender dualism and
biocentrism”
19
destroy the importance of biology;
be fully identified with one of the
poles of the rigid binary system;
c) the status of what they fully are
after transitioning
- men or
women.
a)
b)
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21
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1. To get married – only with someone from
the opposite sex?
1. To get divorced – only men?
2. To paid work – differently paid for the same
type of work?
3. To maternity leave – shorter paternity leave?
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To sexual harassment protection – does it
apply
to
transsexuals?
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Can she be
a killer?
1.
2.
3.
4.
Age of retirement –
earlier for women?
To vote and to be
elected
To join the army
To a fair trial in
criminal law – the
sensitive and
fragile woman…
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Which are the effects of
changing sex?
 In
a
pre-existing
marriage
–
would
become a homosexual
marriage
 In parenthood – 2
mothers or to fathers
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Transsexual husband annuls marriage
and enters into civil partnership with
wife to keep pension benefits (UK,
2008)
27
ECHR
•Rees
v.
The
UK
(1986)
•Cossey v. The UK
(1984)
•B v. France (1987)
•Christine Goodwin v.
The UK (1995)
•L V. The UK (1994)
•X, Y and Zv. The UK,
1997
•Sheffield
and
Horsham v. The UK
(1998)
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Cossey v. The UK (1984)
THE APPLICANT:
a transsexual who was registered at
birth as being of the male sex.
2. assumed a woman's name and
adopted a female role for all purposes.
3. underwent
gender
reassignment
surgery, after which, according to the
medical report, she has lived a full life
as a female.
1.
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The applicant
1.
Wishes to marry, but the UK
authorities informed her that:
1. such a marriage would be void,
because English law would treat her
as a male;
2. she could not be issued with a birth
certificate showing her sex as female.
30

The applicant complained of
her inability to claim full
recognition of her changed
status and alleged a violation
of Art. 8 (right to respect for
private life) and Art. 12 (right
to marry) of the ECHR
31
The ECHR (1990)
gender
reassignment
surgery does not result in
the acquisition of all the
biological characteristics
of the other sex”
•Invoking the UK’s margin
of appreciation, the Court
found no breach of
articles 8 or 12
•“
32
Judge Paul Martens
33
Dissident vote
 The
refusal by
the state is cruel
 Transsexual
=
“tragic
human
being”
B v. France
(1992)
34
The applicant:



was born in 1935 at Sidi
Bel Abbès, Algeria
was registered with the
civil status registrer as
of male sex, with the
names Norbert Antoine
adopted
female
behavior from a early
age
B v. France:
35
The applicant:


in 1963 and settled in Paris,
working in a cabaret under
an assumed name
underwent
a
surgical
operation in Morocco in
1972 - the removal of the
external genital organs and
the creation of a vaginal
cavity
B. v. France:
THE
APPLICANT:



is now living with a man
whom she met before her
operation
is no longer working on the
stage
is unable to find employment
due to the hostile reactions
she arouses
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B v. France
37
The Applicant:


Asked the Court of Libourne
to order the rectification of
her birth certificate: she
would bear the names Lynne
Antoinette
Her application was not
granted because of the
principle of the inalienability
of the status of individuals
B v. France
38
THE APPLICANT:

Appealed to the Court de
Cassation - even after the
hormone treatment and
surgical operation which she
underwent she continued to
show the characteristics of a
person of male sex.
B v. France
39
The Applicant –
Miss B.
complained
of
the
refusal of the French
authorities to:
 recognise
her true
sexual identity;
 to allow her to change
her civil status;
 relying on Articles 3, 8
and 12 of the ECHR.
B v. France
The ECHR:
•it is undeniable that attitudes have
changed, science has progressed
and increasing importance is attached
to the problem of transsexualism
• in the light of the relevant studies
carried out in this field, there still
remains uncertainty as to the
essential nature of transsexualism
and the legitimacy of surgical
intervention in such cases
• there is as yet no sufficiently broad
consensus between the member States of
the Council of Europe to persuade the Court
to reach opposite conclusions to those in its
Cossey judgment.
40
Christine Godwinn v. The UK (1995)
The Applicant:
• Is
a UK citizen born in 1937 and is
a post-operative male to female
transsexual
•Though she married a woman and they had 4
children, her conviction was that her “brain sex” did
not fit her body
• Until 1990 she dressed as a man for work but as
a woman in her free time
• She claims that between 1990 and 1992 she was
sexually harassed by colleagues at work
•In 1997 the Contributions Agency informed her
that she would be ineligible for a State pension at
the age of 60, the age of entitlement for women in
the UK.
41
Christine Godwinn v. The UK (1995)
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The ECHR:


signals its consciousness of the
serious problems facing transsexuals
and stresses the importance of keeping
the need for appropriate legal
measures in this area
where a State authorizes and finances
the treatment alleviating the condition
of a transsexual, it appears illogical to
refuse
to
recognize
the
legal
implications of the result to which the
treatment leads.
Christine Godwinn
v. The UK (1995)
THE ECHR:

•It is not apparent that the chromosomal element must
inevitably take on decisive significance for the
purposes of legal attribution of gender identity for
transsexuals.
• is not persuaded that the state of medical science
provides any determining argument as regards the
legal recognition of transsexuals.
attaches less importance to the lack of evidence of a common
European approach to the resolution of the legal problems posed,
than to the clear and uncontested evidence of a continuing
international trend in favor of increased social acceptance of
transsexuals and of legal recognition of the new sexual identity
of post-operative transsexuals.
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“The
enjoyment of the rights and
freedoms set forth in the Convention
shall be secured without discrimination
on any ground such as sex, race, color,
language, religion, political or other
opinion, natural or social origin,
association with a national minority,
property, birth or other status”.
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The ECHR:
45
•In
the wording of Art. 14
there is no explicit category
such as “gender identity”
•The ECHR has refused to
interpret extensively the “sex
category”
embracing
transsexuals.
•Art. 14 refers to “other status”
What about the European Court of Justice?
46
•P
v. S and
Cornwall County
Council, 1996
•KB v. National
Health Service
Pensions
Agency, 2004
•Richards
v.
Secretary
of
State for Work
and
Pensions,
2006
The ECJ:
47
•The
prohibition of discrimination
on the grounds of sex (Council
Directive 2006/54/EC) includes
discrimination on the grounds of
gender reassignment
•Such discrimination is based on
the fact that a person belongs to
a particular sex
The ECJ:
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Nondiscrimination:



On the principle of equal
treatment for men and
women as regards access to
employment
On the payment of (survival,
retirement) pensions
On the exercise of the right to
marry
The ECJ:
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against “sex
discrimination”
•Protects especially postoperative
transsexuals
and not all transgendered
people
•Protects
Rights:
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1.
2.
3.
4.
5.
Right to life
Right to the protection
of private and family
life
Right to marry and to
found a family
Right to health
Right
to
free
development
of
personality
International Law:
51
•UDHR
(1948)
•ICCPR (1966)
•ICESR (1966)
•ECHR (1950)
•CFREU (2000)
Parliamentary Assembly:
•Recommendation
on
the
Condition of Transsexuals (29
July 1989)
•Resolution recommending all
member states to recognize
basic rights to transsexuals (12
September 1989)
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Rights:
1.
2.
3.
1.
2.
To live according to one’s sexual
identity
To change sex
To rectification of the registered
sex in the birth certificate and
identity documents
To
change
forename
in
accordance with the new sex
To health care.
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Right to health:
Psychiatric
diagnosis
of
transsexualism
2. Psychotherapeutic
assistance
before and after the surgery
3. Information on the change of sex
4. Hormone treatment
5. Clinical trial in living the role of
the new sex for 1 year
6. Surgery
1.
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The EU States – national
health funding scheme:
1.
2.
3.
4.
5.
6.
7.
Phalloplasty
Psychotherapy
Hormone
replacement
therapy
Hair removal
Breast augmentation
Bilateral mastectomies
Vaginoplasty
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Problems - transsexuals:





Wait years until they are
“diagnosed”
Are diagnosed as being “mentally
ill”
Waiting lists for surgeries
Humiliated
by
medical
practitioners
Not well protected against hate
crimes
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2006
GISBERTA
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Transsexuals = “gender outlaws”:
The State
should:


Protect against negative
discrimination
Adopt affirmative action
measures - access to
medical
and
legal
formalities
58


Women and men have rights
not
because
they
are
gendered
beings,
but
because they are human
beings
The target is to make sex a
feature of the citizen no more
relevant than being lefthanded…
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