Trans and intersex people Discrimination on the grounds of sex, gender identity and gender expression

Published: October 4, 2012

Executive summary

Within the broader context of discrimination, discrimination on the grounds of gender identity and gender
expression, as well as discrimination on grounds of sex vis-à-vis intersex people, are particularly complex issues.

This is due to the fact that the legal recognition and rights afforded to this community are often intertwined with specific medical and psychological obligatory requirements. Whilst most of the report deals with discrimination on the grounds of gender identity and gender expression, a brief part focuses on the specific discrimination that intersex people face.

The report begins by describing discrimination on the grounds of gender identity and gender expression, including in particular the challenges faced by trans people in their lives and the demands of the trans community. This part also clarifies the definitions used in the context of trans discrimination, and the terms used by the community to represent the diversity within it. Linked to this part of the report is an annex that contains a glossary of the most important terms. The report shows that negative attitudes towards trans and intersex people are often directly correlated to the importance that a determinate society places on the binary gender model, as well as the levels of gender stereotypes, sexism and gender inequalities that exist within it.

In Europe and in other parts of the world this is reflected in various legal requirements that trans and intersex people must meet in order to fit into one of the two possible genders / sexes. The report explores in detail the medicalisation and pathologisation of trans identities and intersex bodies. It gives an overview of the current situation and information about the dissonance between the rigid requirements established in law and the demands of trans and intersex people with regard to healthcare and their ability to choose the extent of treatments that they undergo (if any). The report then gives a brief overview of the discrimination that trans people face in access to employment and other spheres of life, as well as the levels of harassment, violence and bias-motivated crime that they are victims of both in the domestic and the public sphere.

In a brief part on international human rights law, the report looks into the legal treatment of trans discrimination outside EU law, in particular under United Nations law and under the Council of Europe’s European Convention on Human Rights and Fundamental Freedoms and the case-law related to it. The report shows that while there are few direct references to gender identity in international law, there is an increasing body of resolutions and recommendations that suggests increasing institutional awareness of the seriousness of gender identity discrimination.

The main part of the report deals with EU law on trans discrimination. EU non-discrimination law does not at present contain an explicit prohibition of discrimination on the grounds of a person’s gender identity and gender expression. Indeed, Art. 19 TFEU, which is the most general legal provision on non-discrimination in the EU Treaty, entitles the EU to take action to combat “discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” only, without mentioning trans issues. Neither does a prohibition on discrimination against trans people appear in the EU Charter of Fundamental Rights.
However, this does not mean that at present there is no applicable EU law in this context. According to the case-law of the Court of Justice of the European Union, discrimination against trans people may amount to discrimination on the grounds of sex in so far as people who intend to undergo, are undergoing and have undergone gender reassignment are concerned. The report describes and analyses this case-law as well as its application in the EU Member States. It also discusses the difficulties presented by CJEU case-law.

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