Repeal Requirement for Irreversible Surgery to Change Official Gender
September 13, 2011

Trans people are tired of waiting and hearing empty promises. They want legal action now. Before any new law goes into effect, a lot of time will have passed. Meanwhile trans people have to cope with daily humiliation, discrimination, and frustration.

Boris Dittrich, advocacy director in the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program

(Amsterdam) – The Dutch Civil Code violates the human rights of transgender people, and the government should amend it without delay, Human Rights Watch said in a report released today.  The government should revise article 28 of the civil code, which requires transgender people to take hormones and undergo surgery to alter their bodies and be permanently and irreversibly sterilized before they can have their gender legally recognized on official documents Human Rights Watch said.

The 85-page report, “Controlling Bodies, Denying Identities: Human Rights Violations Against Trans People in the Netherlands,”documents the impact of a 1985 law, article 28 of the civil code, on the daily life of transgender people. The requirements violate transgender people’s rights to personal autonomy and physical integrity, and deny them the ability to define their own gender identity, Human Rights Watch said. The law should be amended to respect transgender people’s human rights by separating medical and legal questions for transgender people. Legal recognition of their gender identity should not be made conditional on any form of medical intervention, Human Rights Watch said.

“The Dutch law causes anguish  for trans people who have not had the required surgery,” said Boris Dittrich, advocacy director in the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human Rights Watch. “Their documents do not match their deeply felt gender identity.  This leads to frequent public humiliation, vulnerability to discrimination, and great difficulty finding or holding a job.”

Human Rights Watch interviewed 28 transgender people for the report, as well as medical professionals, legal experts, government officials, representatives of nongovernmental organizations, and academics.

One transgender person interviewed by Human Rights Watch said about the law: “People are left dangling in between two worlds for far longer than is necessary. It is needlessly traumatizing for people who are already very vulnerable.”

Another person summed up the objections to article 28 this way: “The state should stay out of our underwear.”

In 1985, the Netherlands was among the first European nations to adopt legislation enabling transgender people to change their registered gender. Over a quarter of a century later, though, the Netherlands has lost its leading edge, Human Rights Watch said. Legislation that at the time represented a progressive development is wholly out of step with current best practice and understandings of the Netherlands’ obligations under international human rights law. Several European countries like Portugal, the United Kingdom, and Spain have already done away with the surgical and hormonal requirements. As the law stands in the Netherlands, transgender people must undergo major surgery, requiring considerable recovery time, to change their official gender.

Transgender people’s rights to personal autonomy and physical integrity are protected by the Dutch constitution, subject to restrictions imposed by the law, as well as by several international human rights instruments ratified by the Netherlands, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights.

“It takes years before people can meet the conditions imposed by article 28,” Dittrich said. “During that time, they must live with identity documents that deny a fundamental aspect of their personality. For trans people who do not want surgery, and who will therefore never be able to change their identity documents, these obstacles last a lifetime.”

For many transgender people, keeping the jobs they are in, or finding new employment, is a major concern.

“If I had new papers, my job interviews wouldn’t be about being transgender,” one woman told Human Rights Watch.

A man described how he was ignored in a hospital waiting room while a nurse scanned the room looking for the “Mrs. K” listed on her papers.

In revising the law, the Netherlands could be guided by the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. The Yogyakarta Principles encourage states to consider measures that allow all people to define their own gender identity. The Yogyakarta Principles are not binding, but they are endorsed by the Dutch government. In March 2008 the then foreign affairs minister, Maxime Verhagen, said in a statement to the United Nations that the Dutch government subscribes to these principles. The minister called upon other UN states to follow the Dutch example and embrace the principles as well.

The Dutch government should also safeguard the right of transgender people to choose a first name that suits their gender identity, Human Rights Watch said. This right should be independent from the person’s registered gender. Under the current law some judges have denied a transgender person the right to use their chosen name, saying it was “inappropriate” because the name did not match the registered gender identity.

The new legal framework should also allow for the fact that it may be in the best interest of some transgender children to change their legal gender before they reach adulthood, Human Rights Watch said. There should be no minimum age.  Instead, the individual circumstances of each child should determine whether it is in their best interest to change their legal gender.

“The transgender child should be allowed to voice his or her opinion on the need to change the legal gender, with increasing weight given to that opinion as the child grows closer to adulthood,” Dittrich said.

On several occasions since 2009, the former and current Dutch governments have promised to change article 28. Most recently, in March 2011 the state secretary for security and justice promised to present a bill before the summer recess to abolish the infertility requirement for legal recognition of the gender identity of transgender people. The bill has not yet been introduced, however.

“Trans people are tired of waiting and hearing empty promises,” Dittrich said. They want legal action now. Before any new law goes into effect, a lot of time will have passed. Meanwhile trans people have to cope with daily humiliation, discrimination, and frustration.”