Spain authorized gender self-determination from the age of 16 after much debate in Parliament on February 16.
The day before, Scottish Prime Minister Nicola Sturgeon resigned to everyone's surprise, weakened by the adoption of a similar law in the Edinburgh Parliament a few weeks earlier.
If these two countries are now interested in the question of the rights of transgender people,
what
about the rest of Europe?
Overview of the different European legislations.
Denmark, a pioneering country in Europe
In 2014, Denmark was the first European country to grant the right to self-determination by allowing gender change upon simple administrative request.
The Council of Europe report on the subject defines self-determination as “
the procedure for accessing legal gender recognition based on a declaration by the person concerned, without additional requirements
” and “
without a third party 'intervene
'.
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In Denmark, people who live “
an experience of belonging to the other sex
” than the one registered on their official papers can request a change of social security number.
To do this, it is no longer necessary to provide a diagnosis of a mental disorder or to have undergone any medical operation.
You simply have to be of legal age and reaffirm your desire to change in writing, six months after the first request.
In 2022, ten countries in Europe have authorized self-determination
In April 2015, the Council of Europe
(an international organization which brings together 46 countries, editor's note)
urged European countries to "
establish rapid, transparent and accessible procedures, based on self-determination
".
It thus called on member states “
to abolish sterilization and other compulsory medical treatment, as well as mental health diagnosis
” as preconditions.
In the following years, several Council of Europe members followed suit in Denmark, passing laws largely based on self-determination:
Malta
: the “Gender Identity, Gender Expression and Sex Characteristics Act” of April 2015 allows gender self-determination for Maltese who no longer have to “
prove sexual characteristics total or partial sex, hormonal therapy or any other psychiatric, psychological or medical treatment
”.
The person requesting the legal change of gender must have written, beforehand, "
a clear, informed and unequivocal declaration
".
Ireland
: the "Gender Recognition Act" of July 2015 (passed two months after the authorization of gay marriage) allows any Irish adult to freely change gender without having to present a psychological analysis or without having to resort to a any medical operation.
Changes to civil status are, however, prohibited for those under 16 years of age.
It requires parental consent and medical advice for people aged 16 to 18.
Norway
: the "Legal Gender Change Act" passed in March 2016 allows any Norwegian citizen over the age of 16 to change gender in the civil register.
Gender reassignment is completely free and does not require any medical diagnosis.
For their part, children aged 6 to 16 must have the agreement of the persons holding parental authority.
The then Minister of Health, Bent Høie, said it was a “
historic
” project.
According to him, it was "
up to the person and not to the health services
" to determine his gender.
Belgium
: the "Law on the registration of sex in civil status records" passed in June 2017 removes medical requirements.
A declaration to the registrar is sufficient.
The person must simply reaffirm their desire to modify their civil status information and ensure that they are aware of “
the administrative and legal consequences
” of this change within three to six months after the first request.
However, the change is prohibited for children under 16 and requires parental consent and the advice of a child psychiatrist for adolescents aged 16 to 18.
Luxembourg
: the "Law relating to the modification of the mention of sex and first name(s) in civil status and amending the Civil Code" voted in July 2018 also removes medical requirements.
“
The fact of not having undergone medical treatment, a surgical operation or sterilization cannot justify the refusal to grant the request
”, provides article 2 of the law.
It mentions neither diagnosis nor waiting period.
It specifies that for children under the age of five, the parents must follow a legal procedure.
Portugal
: the "Law on the right to self-determination of gender identity and its expression and to the protection of the sex characteristics of each person" voted in July 2018 made Portugal the sixth country of the Union European Union to grant the right to gender self-determination, from the age of 16.
Persons between the ages of 16 and 18 must, however, have the consent of legal representatives and the opinion of a psychologist or doctor who certifies the minor's “decision-making
capacity
” and his “
informed will
”.
Iceland
: the “Gender Autonomy Act” passed in June 2019 allows Icelanders to freely change gender without any medical treatment.
"
The law also provides that children under the age of 15 can change, with the agreement of their parents, their sex and their name as registered in the National Register
", indicates the report of the Council of Europe.
Switzerland
: the “Law amending the Civil Code and the Ordinance on Civil Status” passed in December 2021 allows Swiss people to “
legally change sex without hormone therapy, medical diagnosis or additional assessment or bureaucratic steps
”.
For anyone over the age of 16, who is not under legal guardianship and “
who has the intimate and constant conviction of not belonging to the sex registered in the civil status register
”, a declaration is sufficient.
Spain
: the “Trans Law” voted in February 2023 provides that any Spaniard, from the age of 16, can modify, on simple request, the mention of their sex in the register of civil status.
For this, he will simply have to confirm his choice three months after the official request.
Greece and France allow the change of gender in civil status without medical condition but subject to a legal procedure.
Under these conditions, one cannot speak of "self-determination" in the legal sense.
Countries that backtrack or oppose
Faced with these recent laws, other countries, on the contrary, are backpedaling.
Especially from a medical point of view.
In
Sweden
, the authorities ended hormone therapy for minors a year ago, except in very rare cases.
They have also restricted the use of breast removal for teenage girls.
Finland took the same decision in 2020. In France, the Academy of Medicine expressed its "
greatest reservation
" on hormonal treatments and invoked "
caution
".
Some laws may also be unwelcome by the opposition or by feminist movements, as in Scotland.
On December 22, the Scottish Parliament passed a law similar to Spain.
The latter would remove the requirement for a medical and psychiatric diagnosis when applying for a gender recognition certificate.
The minimum age to apply for this certificate would be lowered from 18 to 16, and the period the applicant must have lived in their acquired gender should be lowered from two years to three months, with an additional three-month reflection period.
Many voices reacted to this announcement, including the famous author JK Rowling.
For Scottish feminist movements, this law "
sacrifices women's rights
".
London, also reluctant, has also decided for the first time in mid-January to block this new Scottish law, auguring a real political and legal showdown.
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“
My decision today is about the impact of the legislation on the operation of equality protections
,” said Alister Jack, the minister responsible for Scotland in the British government, to justify the decision.
Facing him, Prime Minister Nicola Sturgeon had denounced a “
frontal attack against [the] democratically elected Scottish Parliament and its ability to make its own decisions
”.
She said she wanted to fight the "
Westminster veto
".
On February 15, the separatist Prime Minister, very weakened by this controversial law, resigned after eight years in power.
Some countries, finally, are resolutely opposed to legislating on this issue.
Hungary, whose recent laws have been denounced by a large majority of European countries, had banned in March 2020 the registration of sex change in civil status and the legal recognition of the gender identity of transgender people.
A third kind?
As early as 2015, the Council of Europe had also invited European states to "
consider including a third gender option on the identity papers of those who so wish
".
Several countries have already chosen this option, reports the Council of Europe: in Malta, option X has been available since 2018;
in the Netherlands, option X has been possible
via
a legal procedure since 2018;
in Germany, the option "miscellaneous" or no mention of sex available to intersex people is possible.
Several other European countries are currently considering legislation on this point.
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