Gender Recognition as a Human Right

Lau, Holning

doi:10.1017/9781108676106.015

Cited by 10 publications

(10 citation statements)

References 17 publications

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“…However, it is well known that hormone levels differ by gender and that this influences sports performance. Although we agree with Lau [ 43 ] that basing the selection of athletes on gender markers in identification documents is disproportioned – because it may violate the rights of transgender athletes in terms of the equality principle – the same cannot be said about their health information. To determine if the hormonal level of transgender athletes is equal to that of cisgender athletes is necessary for equity.…”

Section: The Right To Be Forgotten and Trans Identity Informationsupporting

confidence: 68%

“…Indeed, trans people rights derive from human rights, that is, fundamental rights belonging to all people. People with cisgender or transgender identities are equal in human dignity [ 43 ]. According to the Universal Declaration of Human Rights [ 79 ], “ All human beings are born free and equal in dignity and rights ”.…”

Section: The Right To Be Forgotten and Trans Identity Informationmentioning

confidence: 99%

“…This perspective is based on equality and human dignity [ 13 , 32 , 45 , 59 ]. Researchers might have to rely on medical records to study how health issues manifest differently based on biological sex at birth [ 43 ]. Consequently, the right to delete gender-affirming associated information could be the starting point for exposing certain health research types.…”

Section: The Right To Be Forgotten and Trans Identity Informationmentioning

confidence: 99%

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Gender Transition: Is There a Right to Be Forgotten?

2021

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The European Union (EU) faced high risks from personal data proliferation to individuals’ privacy. Legislation has emerged that seeks to articulate all interests at stake, balancing the need for data flow from EU countries with protecting personal data: the General Data Protection Regulation. One of the mechanisms established by this new law to strengthen the individual’s control over their data is the so-called “right to be forgotten”, the right to obtain from the controller the erasure of records. In gender transition, this right represents a powerful form of control over personal data, especially health data that may reveal a gender with which they do not identify and reject. Therefore, it is pertinent to discern whether the right to have personal data deleted—in particular, health data—is ethically acceptable in gender transition. Towards addressing the ethical dimensions of the right to be forgotten in this case, this study presents relevant concepts, briefly outlines history, ethics and law of records considering the evolution from paper to electronic format, the main aspects of identity construction and gender identity, and explores the relationship between privacy, data protection/information control and identity projection. Also, it discusses in gender transition the relation between “the right to self-determination”, “the right to delete”, and “the right to identity and individuality”. Conclusions on the ethical admissibility of the ‘right to be forgotten’ to control gender-affirming information are presented.

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Section: The Right To Be Forgotten and Trans Identity Informationsupporting

confidence: 68%

Section: The Right To Be Forgotten and Trans Identity Informationmentioning

confidence: 99%

Section: The Right To Be Forgotten and Trans Identity Informationmentioning

confidence: 99%

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Gender Transition: Is There a Right to Be Forgotten?

2021

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“…In this regard, state obligations to enable changes in registered sex were only recently framed in terms of gender recognition and self-determination. While authors like Lau (2020), Theilen (2020), and Baisley (2016) agree that gender identity rights exist or are emerging under international human rights law, others disagree (see Baisley, 2016). Moreover, a vast number of states -in all continents -resist the recognition of gender identity rights in international law, especially within the more "political" bodies of the United Nations (UN), such as the Human Rights Council (HRC).…”

Section: A Current Human Rights Frameworkmentioning

confidence: 99%

The Abolition of Sex/Gender Registration in the Age of Gender Self-Determination: An Interdisciplinary, Queer, Feminist and Human Rights Analysis

Cannoot¹,

Decoster²

2020

IJGSL

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It is commonly accepted that gender matters (whether cisgender, transgender/trans*, gender non-binary, genderfluid, gender queer, agender, or other) and many are raising awareness about the fact that gender always seems to matter. That gender matters, and always matters, does not necessarily mean, however, that gender needs to be authenticated or endorsed by the state.In fact, based on a feminist and queer reading of human rights, this interdisciplinary article asserts that state-sponsored sex/gender assignment through the practice of sex/gender registration must halt. It argues that mandatory (binary) sex/gender registration disproportionately infringes the emerging right to gender identity autonomy and the right to the legal recognition thereof. Most often, our Western heterosexual cultural system of gender, which posits the existence of two oppositional and complementary gender identities, anchored in so-called natural and binary sex, goes hand in hand with material and discursive forms of violence and entails various forms of unequal power dynamics. Hegemonic in nature, the heterosexual cultural system of gender pervasively regulates many (if not every) aspects of all bodies’ lives and being, including by legal means. The law upholds and certifies that specific gender regime, inter alia, by assigning a sex to individuals at birth (through the registration of a claimed evident, objective, natural element to be found on or in the body by inspection). Policies of mandatory (binary) sex/gender registration therefore constitute the cornerstone of the legalisation of the heterosexual cultural system of gender, which produces not only the conventional feminine and masculine gender identity (i.e. women and men) but also sex (i.e. females and males).This article suggests that, as long as the law refuses to go beyond the compulsory male/female (or even male/female/other) framework, it will be complicit in upholding the undesired consequences of the heterosexual cultural system of gender, which affect all persons of whatever gender or physical features. Therefore, undoing remaining forms of global gender injustice, as well as respecting, protecting and fulfilling human rights relating to gender identity, requires the abolishment of sex/gender registration instead of expanding the available gender markers. Indeed, this article finds that current state practices do not pursue a legitimate aim, and even if they do, mandatory sex/gender registration does not pass the proportionality test that is required in the assessment of restrictions of fundamental rights. A human rights analysis of official sex/gender in the age of gender self-determination finds mandatory sex/gender registration to be a disproportionate measure and recommends that states change their current practices. Doing so would be beneficial to cisgender and trans* individuals alike.

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“…100 Lau therefore argues that the ECtHR has acknowledged only a partial right to gender identity recognition. 101 Or, in the words of Ammaturo, the ECtHR 'established clear boundaries between 'legitimate' and 'illegitimate' positions for transgender persons as human rights holders'. 102…”

Section: The Court'smentioning

confidence: 99%

The pathologisation of trans* persons in the ECtHR’s case law on legal gender recognition

Cannoot

2019

Netherlands Quarterly of Human Rights

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The European Court of Human Rights is the human rights monitoring body that has dealt with the largest number of cases related to gender identity and trans* persons. In this regard, it has recognised under Article 8 ECHR both a right to gender self-determination and a positive obligation for the State to adopt a procedure for legal gender recognition. However, Contracting States were given a wide margin of appreciation to set conditions for the legal recognition of a person’s actual gender identity, leading to the acceptance by the Strasbourg Court of pathologising requirements such as a diagnosis of gender dysphoria and compulsory sex reassignment surgery. This contribution analyses and conceptually explains this message of trans* pathologisation in the ECtHR’s case law. Subsequently, on a normative level, it argues that this case law cannot be upheld taking into account the international trend towards full trans* depathologisation, and the scope of the margin of appreciation that States (ought to) have in cases concerning gender identity.

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Gender Recognition as a Human Right

Cited by 10 publications

References 17 publications

Gender Transition: Is There a Right to Be Forgotten?

Gender Transition: Is There a Right to Be Forgotten?

The Abolition of Sex/Gender Registration in the Age of Gender Self-Determination: An Interdisciplinary, Queer, Feminist and Human Rights Analysis

The pathologisation of trans* persons in the ECtHR’s case law on legal gender recognition

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