Surgery Requirement to Change Official Gender Repealed
December 20, 2013
“The new law is an important step toward equality for transgender people in the Netherlands. It puts people in a much stronger position to change their gender identity without intrusive and abusive medical requirements.”
Boris Dittrich, Advocacy Director, LGBT Rights Program

(Amsterdam) – The law on transgender rights that the Dutch Senate approved on December 18, 2013, is an important step toward equality, Human Rights Watch said today. The new law will allow transgender people to change the gender marker in their official identity papers to their preferred gender. It does away with previous requirements for taking hormones and surgery, including irreversible sterilization, though it is a step short of complete personal autonomy for the decision.

The law was adopted by a vote of 51 to 24. As it had already been approved by the other parliamentary chamber, the law now only needs to be countersigned by the king to be official. It should come into force on July 1, 2014.

“The new law is an important step toward equality for transgender people in the Netherlands,” said Boris Dittrich, advocacy director in the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human Rights Watch. “It puts people in a much stronger position to change their gender identity without intrusive and abusive medical requirements.”  

These requirements in an outdated 1985 law violated transgender people’s rights to personal autonomy and physical integrity, and denied them the ability to define their own gender identity, Human Rights Watch said.

Human Rights Watch published an 85-page report in September 2011, “Controlling Bodies, Denying Identities: Human Rights Violations Against Trans People in the Netherlands,” which documents the impact of the 1985 law – article 28 of the civil code – on the daily lives of transgender people. Human Rights Watch had recommended amending the law on the grounds that article 28 violated the human rights of transgender people.

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. The report was referred to several times in the debates over the new law in the House of Representatives and the Senate.

Under the new law, anyone over age 16 may file a request to change their gender. But the request must be accompanied by an expert statement affirming the person’s permanent conviction to belong to another gender.

Human Rights Watch believes it is better not to introduce a minimum age, but instead to review a proposed change on a case-by-case basis. The requirement for an expert opinion could lead to long waiting lists because only a limited group of medical professionals are currently designated as experts. However, the government promised the Senate to speed up the review of the law from five years to three. During the review these two aspects will be re-evaluated.

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 had lost its leading edge. Legislation that at the time represented a progressive development became wholly out of step with current best practice and understanding of the Netherlands’ obligations under international human rights law. Several European countries like Germany – through a ruling by the Constitutional Court – Portugal, the United Kingdom, and Austria have already done away with the surgical and hormonal requirements. Argentina’s law neither requires surgical and hormonal intervention nor any third party involvement.

The Dutch constitution protects transgender people’s rights to personal autonomy and physical integrity, subject to restrictions imposed by the law. Several international human rights instruments ratified by the Netherlands also protect transgender rights, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights.

In revising the law, the Netherlands was also 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 countries to consider measures that allow all people to define their own gender identity. The Yogyakarta Principles are not binding, but are endorsed by the Dutch government.

“The requirement for an expert opinion in the new law undermines the right of transgender people to determine their own identity without interference of a third party,” Dittrich said. “The new law is a good step forward, but the Netherlands should move quickly to complete personal autonomy in letting people determine their gender identity.”

For more Human Rights Watch reporting on the Netherlands, please visit:
http://www.hrw.org/europecentral-asia/-netherlands

To read the September 2011 Human Rights Watch report, “Controlling Bodies, Denying Identities: Human Rights Violations against Trans People in the Netherlands,” please visit:
http://www.hrw.org/reports/2011/09/13/controlling-bodies-denying-identities-0