Hungary – Two judgments on the restrictions of the open distribution of LGBTIQ-themed books for the youth
The application of Article 20/A of Decree 210/2009. (IX. 29.) on the Conditions of Performing Commercial Activities, prescribing specific conditions for the sale of children’s products depicting deviation from gender identity aligning with sex at birth, gender reassignment or portraying or promoting homosexuality
US court finds Florida ban on transgender healthcare discriminatory
Chief US District Judge Mark E. Walker ruled Thursday that the state of Florida’s employee health insurance plan violates Title VII employee protections against discrimination on the basis of sex.
The court found that Florida’s insurance plan was a clear instance of treating an individual employee differently solely because of their sex, holding that the state’s administration of healthcare benefits was facially discriminatory and violated Title VII of the Civil Rights Act of 1964. Title VII is a landmark federal legislation that makes it unlawful for an employer to discriminate on the basis of race, color, religion, sex or national origin, and it includes discrimination that impacts an individual’s compensation and benefits.
Judge Walker granted the plaintiffs’ motion for partial summary judgment, finding the employer liable, and ordered a conference for August 16, 2024, for the parties to discuss the extent of damages at trial.
Florida’s employee health insurance plan excludes coverage for gender reassignment or modification services. The plaintiffs are current and former employees of the state of Florida who alleged violations of Title VII because the healthcare exclusions, which have been in effect since 1970, apply only to transgender employees. The plaintiffs were denied coverage for medically necessary gender-affirming medical care for their gender dysphoria, a DSM-V condition, but these same treatments are covered by the state for other medically necessary reasons not based on sex.
The ACLU of Florida, serving as counsel for the plaintiffs, stated in response to the ruling:
We are so grateful that the court is holding the state accountable for its facially discriminatory policy that carves out transgender state employees for unequal treatment. There is no nondiscriminatory reason for the state to categorically deny coverage of safe, effective, medically necessary treatment only when it is needed to treat gender dysphoria but not for the treatment of any other condition. As the court made clear, ‘Title VII prohibits all forms of discrimination because of sex, however they manifest themselves,’ and we are thrilled that this antiquated relic of state-sanctioned discrimination has been left in the past where it belongs.
Transgender rights are a controversial issue across the US, where states have been pushing back against regulations expanding transgender rights protections in schools as well as in healthcare. The US Supreme Court recently announced that it will hear a case to decide the legality of a state ban on gender-affirming care for minors, which will have a significant impact on youth transgender health rights across the country.
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Nepal Supreme Court grants legal recognition to transgender woman without medical verification
The Supreme Court of Nepal has ruled that Rukshana Kapali, a transgender woman, should be legally recognised on all documents as a woman without having to submit to medical verification according to a Wednesday report by HRW.
As part of her campaign for rights-based legal recognition of gender identity, transgender law student Kapali has filed more than 50 lawsuits against the Nepali government since 2021. However, the order granted only pertains to Kapali; others will need to petition the courts in order to have their gender identification officially accepted.
Authorities have been publishing certain documents for over ten years that include “other” or “third gender” categories, in accordance with a 2007 Supreme Court ruling. However, in order to change their gender markers to “female” or “male,” trans people in Nepal are usually required to have surgery, which necessitates leaving the nation, followed by in-country medical evaluations that include intrusive exams of their post-operative genitalia.
HRW in the past has urged Nepal to establish a process that is simple to understand, straightforward, and respectful of people’s rights so that transgender and third-gender individuals can get official documentation that reflects their gender identity.
This key issue was raised by Kapali herself, as she stated earlier this year that there is no straightforward way for people to change their name and gender on citizenship paperwork without going to court. She discusses the frustrating exchanges of accountability between the government and Parliament but there being no real action taken.
Individuals’ self-defined gender identity and sexual orientation are “integral to their personality” and a fundamental component of identity, personal autonomy, dignity, and freedom, according to The Yogyakarta Principles, which were formulated and signed in 2006 by a group of human rights experts. Gender recognition is permissible “if freely chosen, modification of bodily appearance or function by medical, surgical, or other means,” according to the set of principles. However, resources for medical assistance should be readily available if necessary for an individual’s personal transition phase.
The 2015 constitution of Nepal also recognises LGBTQIA+ identities. The right to equality and freedom from discrimination is guaranteed to “gender and sexual minorities” under Article 18(3). Article 12 mandates that “gender identity”—rather than just gender—be included on citizenship certificates. Article 42 protects sexual and gender minorities’ right to “social justice,” which includes affirmative action rights and participation in governmental agencies.
Kapali’s verdict is the most recent in the court’s string of progressive decisions regarding gender identity and sexual orientation, which has helped Nepal gain a favourable reputation for LGBTQIA+ rights around the world.
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Italy’s Constitutional Court denies the possibility of recognizing in the courts the alleged “non-binary” sexual identity
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09 August 2024
On the Decision No. 143/2024 of the Italian Constitutional Court
In decision No. 143/2024, published on 23 July 2024, the Italian Constitutional Court recognises the existence of non-binary people for the first time in Italian history. Although the decision as such is a big step for queer rights in Italy, the Court stops halfway. In contrast to the German “Dritte Option” decision, the Court does not set clear instructions or deadlines for the Parliament. Italy’s current transphobic political climate likely means non-binary gender markers will not be introduced by the Italian Parliament anytime soon.
In 1982, Italy was – after Sweden and Germany – the third country worldwide to adopt a law (Law No. 163/1982) allowing trans people to correct their gender markers in civil status registriers, especially birth registries (see here, p. 15). Two separate procedures were introduced: one to correct the gender marker in the civil status registries and one to get the authorisation for gender-affirming surgery. After a reform that upheld the dual procedure (see here, p. 22), several decisions of the Supreme Court and the Constitutional Court found the legal procedure for legal gender recognition in need of change (see here). (just as with the German “Transsexuellengesetz”). As a consequence, the transition no longer requires surgery, and it is sufficient to have lived with one’s new gender identity. However, what remains is a rigorous assessment of the seriousness and unambiguousness of an individual’s intent and the “objective” transition to the new gender identity.
During all this time, Italian law has only ever recognised two legal gender markers, “maschile” (male) and “femminile (female).
The claimant (N.) is a non-binary person who grew up in the majorly German-speaking province of South Tyrol in Italy and studies in Austria. The claimant was assigned female at birth, and their legal gender marker reads “femminile”. The claimant wants to correct the gender marker to “other”, change their name to I. and undergo a gender-affirming surgery (in particular, a mastectomy). N. has applied to the Court of Bolzano for the correction of their gender from “female” to “other” and to receive the Court’s authorisation for gender-affirming surgery, which is necessary under Italian law.
The Court of Bolzano referred to the Corte Costituzionale, inter alia, the following question: Does Art. 1 of Law No. 164/1982, the law containing the rules on the correction of gender markers, violate the Italian Constitution because it does not contain a non-binary gender marker in civil registers?
The Constitutional Court declares this question of the Court of Bolzano inadmissible. Following the government’s line of argument, the Court states that the case poses a Constitutional problem that cannot be resolved by the review of the Constitutional Court for its wide-ranging consequences on the legal system (Considerato in Diritto, para. 5). While the government claims that the admissibility of the question took the existence of genders other than male and female for granted – which they seem to imply was dubious – the Court, however, cites various sources showing how widely accepted the existence of non-binary gender identities is. It thus clearly opposes the government’s position.
The Court cites, for instance, the International Classification of Diseases 11th Revision (ICD-11) by the WHO which recognises, inter alia, non-binary gender identities (para. 5.1) and – following the claimant’s line of argument (para 3.1.), refers to European legal sources recognising non-binary gender identity (para 5.2).
Especially notable is the reference to the recent German law on self-determination (Gesetz über die Selbstbestimmung in Bezug auf den Geschlechtseintrag [SBGG]). It is uncommon for the Corte Costituzionale to cite national laws of other states that are not international or European law and hence not binding for Italy. The Constitutional Court taking inspiration from another legal order, shows the impact of the recognition of civil rights moves beyond borders. The Court citing the new German SBGG is also surprising because it does not change the number or type of – binary or non-binary – gender markers in Germany, but only the procedure of legal gender recognition. Even before the introduction of the SBGG, under German law, it was possible to recognize non-binary gender identities by having no gender marker at all (since 2013) or by correcting the gender marker to “diverse” (since 2018, after “Dritte Option”).
The claimant invoked that Art. 1 of the challenged Law N. 164/1982 from 1982 violates several constitutional norms, namely the protection of one’s social identity (Art. 2), the principle of equality (Art. 3) and the right to health and psychological well-being (Art. 32). Moreover, they put forward that a European consensus on the protection of non-binary people had emerged under the right to respect for private and family life in Art. 8 of the European Convention of Human Rights (ECHR), referred to in Art. 17 para. 1 of the Italian Constitution (para 3.1.).
The Constitutional Court stops short of declaring a constitutional violation but acknowledges the significance of several constitutionally protected rights concerning non-binary gender identities (para. 5.4). The Court affirms that the exigency to be recognised in one’s gender identity creates an unease that is important with regards to the right to expression of personality (Art. 2 of the Constitution). Moreover, the lack of recognition via a non-binary gender marker affects the right to equality (Art. 3) and the right to health (Art. 32).
The Constitutional Court agrees with the government, that while the ECHR protects transitions towards another binary gender identity, there is not sufficient European consensus on a positive obligation to introduce non-binary gender markers (para 5.3). Here the Court refers to a French case decided by the European Court of Human Rights (ECtHR) in 2023, similar to the Italian case (see here). Following its “margin of appreciation” doctrine, the ECtHR ruled that France is currently not required to introduce non-binary gender markers under the Convention. This doctrine can be criticised for emphasising compromises instead of securing human rights protection. However, the ECtHR emphasised this could change if there was a general trend towards recognising non-binary gender identities in Convention parties.
A noteworthy paragraph concerns the practice of secondary schools and universities to give “alias careers”: confidential procedures entering the chosen name of a student into the electronic register instead of the name used in civil registries. Alias careers allow non-binary and trans people, for instance, to use their chosen name and gender identity on their school’s internal administrative documents or e-mail accounts. According to the Court, this practice testifies to an ‘increasingly averted sensitivity’ recognising these identities (para. 5.4). Rete Lenford commented that this reference of the Court is particularly important as it attributes legitimacy to this practice. In the current political climate school managements practicing “alias careers” are heavily under attack.
The Court concludes that non-binary conditions must be brought to the attention of the legislator who is responsible for considering society’s sensitivities and needs (para. 5.4).
Introducing a third option would need a holistic intervention of Parliament due to its wide-ranging consequences on a legal system still based on binary logic. Examples include family law, labour law, sports law, and privacy law with regard to prisons, hospitals, and other places structured by binary logic (para. 5.5). Finally, the law requiring names to correspond to genders would need to change if a third option were introduced, as “in Italian onomastics, gender-neutral names are very rare”.
The facts of the Italian case are quite similar to the “Dritte Option” decision of the German Federal Constitutional Court (FCC) from 2017 (see also Verfassungsblog symposium on this decision). In the German case, a non-binary and intersex person from Germany wanted not only the possibility of having a blank entry – this had already been possible under German law since 2013 – but also a positive non-binary gender marker. The FCC decided that it was unconstitutional for German law, on the one hand, to require a gender marker for everybody but, on the other hand, to only allow binary gender markers: “männlich” (male) and “weiblich” (female). In particular, the FCC found a violation of the general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.
As constitutional solution, the FCC proposed two options: either to abolish all gender markers or to introduce non-binary gender markers. While scholars have argued for the abolition of gender markers (see e.g. here or here), German Parliament chose the second option and introduced the non-binary gender marker “divers” (diverse) in 2018. Since then, non-binary persons in Germany can choose between a blank entry or “diverse”. When the Selbstbestimmungsgesetz enters into force in November 2024, a person’s decision can determine their gender marker for themselves. Psychological opinions or medical attests are no longer necessary.
Unlike the Italian Constitutional Court, the FCC went one step further, compelling the German Parliament to choose between the two options and even setting a deadline of roughly 14 months.
The Italian case demonstrates the importance of legal gender recognition in Europe. Only Iceland and Germany fully recognise non-binary gender identities. But debate is ongoing in other jurisdictions.
Finally, the private international law dimension of the case is worth mentioning. The claimant has Italian citizenship but lives in Austria. Even though, there is Austrian case law recognising non-binary identities, this jurisdiction is limited to Austrian citizens. Had the claimant lived in Germany instead, they were allowed to use the new procedure under the Selbstbestimmungsgesetz which is not limited to German citizens. Persons habitually residing in Germany may choose German law (Art. 7a Einführungsgesetz zum Bürgerlichen Gesetzbuch) and thus use the new procedure under the Selbstbestimmungsgesetz. German authorities then have to address this person with their new name and chosen pronouns. It is mostly unclear whether their country of origin must also recognise such a correction in Germany. Citizens of EU Member States may benefit from prohibition of discrimination (Art. 18 TFEU, Art. 21 CHFR) and their right to free movement (Art. 21 TFEU).
With its recent ruling, the Italian Constitutional Court clearly acknowledged the legitimacy of non-binary gender recognition via the introduction of a non-binary gender marker in civil registries. This is not the first time the Court has urged the legislature to take action on LGBTQI rights; the Court made similar calls for legislation prior to the introduction of same-sex civil unions in 2016. Now, the responsibility for this necessary and systemic reform lies with Parliament. Georgia Meloni’s government is highly unlikely to initiate a timely reform. In May 2024, the Italian government refused to sign the Declaration on the continued advancement of the human rights of LGBTIQ persons in Europe of the Council of the EU. The Italian Family Minister Eugenia Roccella stated that “gender binarism should continue to apply”, and linked “abolishing men and women” with “no more children being conceived”. After limiting same-sex parental rights and making their battle against surrogacy an LGBTQI issue, the recognition of gender identity does not fit Meloni’s far-right agenda. In this political landscape, the Constitutional Court’s recognition of non-binary gender identities is a beacon of hope and inclusivity.
Source: https://verfassungsblog.de/non-binary-gender-markers-italy/
UK High Court rules ban on puberty blockers is lawful
A UK High Court ruled Monday that a ban on puberty blockers issued in May 2024 in the UK was lawful. TransAction, an organisation that advocates for transgender healthcare and legal protections, and an anonymous transgender young person, issued this legal challenge against the Secretary of State for Health and Social Care, alleging the ban was implemented through an unlawful process.
The claim failed on all three of its grounds, with the court concluding that the secondary legislation banning puberty blockers for under eighteens was in fact, lawful. Firstly, TransActual argued that the Health Secretary was not entitled to issue the ban through the emergency procedure as it did not satisfy the relevant test to do this. The court held that this test was satisfied, as it was “a matter for the judgment of the Ministers” in cases of “scientific uncertainty.” Secondly, TransActual alleged that the Health Secretary acted unlawfully in failing to consult organisations that worked with transgender individuals, such as themselves. Here, the court agreed with the Health Secretary that no such duty existed, and further held that even if such consultations had been conducted, it was “unlikely” they would “have made any difference.” Finally, TransActual argued that the ban breached the Article 8 rights of the anonymous transgender young person who was challenging the ban alongside TransActual. This claim, too, failed, and the overall decision to ban puberty blockers was held to be “rational.”
The ban was issued on May 29, 2024, under the previous Conservative government and just over a month before the newly elected Labour government came into power. It restricted the “prescription, sale or supply of [puberty blockers] for the purposes of puberty suppression to children and young people under 18 who are experiencing gender dysphoria.” The Health Secretary stated that the ban intended to protect “vulnerable children [who] were being placed on medical pathways which had substantial . . . risks and no or very limited clear benefits.” This impacted many young transgender individuals, including the transgender young person who participated in this legal challenge, as the ban meant she could no longer be prescribed puberty blockers from an overseas provider in England.
TransActual condemned the court’s decision to uphold the ban. They were particularly concerned by the Health Secretary’s reliance upon the “Cass Review,” when implementing this legislation. Reliance upon this review was also held to be lawful as the review “amounted to powerful scientific evidence in support of restriction on the supply of puberty blockers on the grounds that they were potentially harmful.” This review was conducted by Dr Hilary Cass, who concluded that puberty blockers should only be used under a research protocol. However, this review has been widely criticised by LGBTQ+ groups and medical experts such as the Yale School of Medicine. TransActual emphasised that the review “is the work of someone with no experience of trans healthcare,” which “excluded trans researchers from the review team, on grounds of potential bias, while including several clearly identified anti-trans academics.”
TransActual’s Director for Healthcare, Chay Brown, stated his concerns following the High Court ruling:
We are seriously concerned about the safety and welfare of young trans people in the UK. Over the last few years, they have come to view the UK medical establishment as paying lip service to their needs; and all too happy to weaponise their very existence in pursuit of a now discredited culture war.
TransActual urged NHS England and the Department of Health and Social Care to “take urgent steps” to reverse this perception of the transgender community and encouraged people to call on their local MPs to speak up about the ban. Regarding an appeal of the ruling, the organisation have asked the judge for leave to appeal the decision, and “will decide whether to do so subject to the advice [they] receive.”
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Germany lawmakers debate constitutional amendment for LGBTQ+ protections amid fierce opposition
The leader of the Christian Democratic Union (CDU) in the Bundestag, Thorsten Frei, told a local newsroom Monday that he opposes the implementation of a ban on discrimination based on sexual identity through a constitutional amendment. This statement is a reaction to the bill (Drucksache 19/13123) presented by the parliamentary groups FDP, Die Linke, and Bündnis 90/Die Grünen. The bill proposes to add sexual identity as a prohibited ground of discrimination to Article 3 of the Basic Law of the Federal Republic of Germany.
Currently, Article 3, paragraph 3 of Germany’s Basic Law prohibits discrimination based on sex, parentage, race, language, homeland and origin, faith, or religious or political opinions, as well as disability. Despite the absence of explicit protection for sexual identity, Frei maintains that the existing legal framework, including Article 3, the EU Charter of Fundamental Rights, and the General Equal Treatment Act, already provides sufficient safeguards against discrimination based on sexual orientation. He stressed that any modification to the “heart of the Basic Law” would necessitate exceptionally compelling reasons.
The Lesbian and Gay Association (LSVD) offers a more nuanced perspective on the issue. While acknowledging the positive impact of Federal Constitutional Court decisions and subsequent legislative actions on LGBTI lives, they emphasize that these advancements often resulted from protracted legal battles. The LSVD commends the gradual establishment of a constitutional interpretation that equates the protection of sexual identity with other explicitly mentioned grounds of discrimination. However, they caution that this jurisprudence may not provide enduring protection against potential future reinterpretations. This stance highlights the LSVD’s recognition of progress made while also expressing concern about the long-term stability of these protections without explicit constitutional recognition.
The proponents of bill 19/13123 further elaborate on this concern in their explanatory statement. They acknowledge the significant progress made in LGBTQ+ legal protections, citing anti-discrimination provisions in EU law and several German state constitutions. However, they argue that persistent societal prejudices, particularly against homosexuals, continue to manifest in legal and social discrimination. This assertion is supported by alarming statistics from the OSCE Office for Democratic Institutions and Human Rights (ODIHR), which reported 1,422 anti-LGBTI hate crimes in Germany in 2022 alone.
Against this backdrop, recent events have amplified the call for stronger legal protections. During Christopher Street Day celebrations in Berlin, hundreds of thousands of demonstrators demanded enhanced rights for LGBTQI individuals. Notable among them was singer and LGBTQI rights advocate Herbert Grönemeyer, who urged for the amendment of Article 3 of the Basic Law to explicitly include protection against discrimination based on sexual identity and gender. While achieving the necessary two-thirds majority in both the Bundestag and Bundesrat for such a constitutional amendment remains challenging, recent legislative progress offers a glimmer of hope. In April, Germany’s parliament passed a landmark law allowing transgender and non-binary individuals to modify their legal documents through a self-identification process, replacing the outdated 1980 Transsexuals Law. This development signals a potential shift towards more inclusive and progressive legislation in the realm of LGBTQI rights.
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US federal court blocks sex discrimination protections for LGBTQ+ students
A US federal court Wednesday blocked the Department of Education’s Final Rule prohibiting sex discrimination against LGBTQ+ students from taking effect in six states.
The plaintiffs in the suit were Arkansas, Iowa, Missouri, Nebraska, North Dakota and South Dakota. The states sought to block revised regulations which expanded Title IX discrimination protection to LGBTQ+ students.
Interpretation of the word “sex” in Title IX was the central issue. The law prohibits discriminatory treatment in schools on the “basis of sex.” The Department of Education interpreted this term to include sexual orientation based on a US Supreme Court ruling, Bostock v Clayton County. In that decision, the court held that the phrase “because of … sex” prohibited employers from making employment decisions based on an individual’s sexual orientation or gender identity. The court’s reasoning was that “when an employer discriminates against a person for being gay or transgender, the employer necessarily discriminates against that person for traits or actions it would not have questioned in members of a different sex.”
The plaintiff states argued against this broader interpretation. The US District Court for the Eastern District of Missouri agreed and found that the Department of Education inappropriately applied the Bostock interpretation of “sex” as Bostock was a workplace human rights case interpreting different civil rights legislation, Title VII. Judge Rodney Sippel held that the plaintiffs met their “preliminary burden of demonstrating that they have a fair chance of prevailing on their argument that the Department [of Education] exceeded its statutory authority and/or acted in contravention of the law in expanding the definition of sex-based harassment.”
Wednesday’s ruling is the latest in a series of recent federal court rulings that have blocked the regulation from taking effect. This lawsuit was one of eight launched by 26 states in response to the proposed Title IX protections. The Department of Education’s final rule is now temporarily blocked from taking effect in 21 states and being challenged in another five, according to Edweek. The new regulations were due to come into force on August 1, 2024.
Title IX of the Education Amendments of 1972 was landmark legislation that prohibited sex-based discrimination in schools or other education programs that received federal government funding.
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The six-decade-old law prohibits same-sex sexual acts, calling them “unnatural carnal knowledge.”
| Closure of Protection Gaps? Persecution on Grounds of Sexual Orientation with the International Criminal Law Reform in Germany |
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| 18.06.2024 | by Livia Benschu & Alexandra Lily Kather |
| On Thursday, June 6, 2024, the German Parliament adopted the Federal Government’s draft bill on the further development of international criminal law as amended by the Committee on Legal Affairs. The ‘Act on the Further Development of International Criminal Law’, which has been analyzed here, also concerns crimes of sexual, reproductive and other gender-based violence. Notably, sexual orientation was added as a ground of the crime against humanity of persecution.[click here to see full article] |
Burkina Faso moves towards criminalising homosexuality
More: https://www.thepinknews.com/2024/07/16/burkina-faso-homosexuality-lgbtq-criminalise/
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 