England restricted gender care for children

The National Health Service in England started restricting gender treatments for children, making it the fifth European country to limit the use of medication in such cases.

England’s move is part of a broader shift in northern Europe, where health officials have been concerned by soaring demand for adolescent gender treatments in recent years. Several transgender advocacy groups in Europe have condemned the changes, saying that they infringe on civil rights and exacerbate the problems of overstretched health systems.

Source: NYT, 10 April 2024

Austria: Commercial Court Vienna Violates European Union Law – Without Consequences (reported by Dr Helmut Graupner)

The Court found no gender-discrimination in the exclusion of gender assignment surgeries from a (private company) health insurance contract arguing that all kinds of gender assignment surgeries are excluded and no difference made between female-to-male and male-to-female. An argument the CJEU has rejected repeatedly since its first gender identity judgment back in 1996.

Despite that the Commercial Court Vienna, the final instance in the case, alleged that its judgment would be in line with the constant CJEU case-law (!) and refused to refer the case to the CJEU.  

https://www.derstandard.at/story/3000000214100/das-handelsgericht-wien-bricht-eu-recht-folgenlos

UN Human Rights Council adopts resolution to combat discrimination against intersex persons

The UN Human Rights Council passed a resolution Thursday on Combating Discrimination, Violence, and Harmful Practices against Intersex Persons who are born with sex characteristics differing from conventional binary perceptions of male or female anatomy. The resolution was adopted by a vote of 24 in favor, none against and 23 abstentions.

In Resolution A/HRC/55/L.9, the council requested that the Office of the High Commissioner prepare a report “examining discriminatory laws and policies, acts of violence and harmful practices against persons with innate variations in gender characteristics in all regions of the world, and their root causes,” as well as best practices for intersex people to enjoy the highest attainable standard of physical and mental health.

The Office of the High Commissioner highlighted that despite increased awareness, human rights violations against intersex persons continue. These violations range from infanticide to discriminatory practices in various areas such as education, sports and employment. The office has expressed deep concern about coercive and forced medical interventions against intersex children, who are often subjected to unnecessary surgical procedures aimed at conforming to binary gender stereotypes. This often irreversible procedure can result in permanent infertility, pain, incontinence, loss of sexual sensation and lifelong psychological suffering. According to the office, the procedure is regularly carried out without the full, free and informed consent of the person concerned, who is often too young to participate in the decision-making process, violating their rights.

The Office of the High Commissioner emphasized in one of its press releases that states should urgently enact legislation to prohibit medically unnecessary surgeries and procedures on intersex children. In addition, the office stated that it is imperative to raise awareness of the rights of intersex persons and to address the underlying causes of these violations, such as harmful stereotypes, stigma and the pathologization of intersex variations.

The Inter-American Commission on Human Rights (IACHR) has noted that intersex older persons have specific health needs related to their age but are also affected by their physical diversity, which can pose challenges in accessing and receiving adequate medical care. In addition, the IACHR highlighted that many of these persons suffer the consequences of medical interventions aimed at conforming to binary gender stereotypes, resulting in chronic pain, physical scarring, emotional trauma, hormone dependency, genital insensitivity and sterilization.

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Hong Kong revises requirements for transgender individuals to change government ID sex

The Hong Kong government revised on Tuesday the Hong Kong ID cards sex entry policy. After the revision, individuals who have not completed full sex reassignment surgery may apply to change the gender marker on their identity cards.

After the revision, preoperative transgender individuals may still apply for an amendment if the individual has completed surgical treatment such as the removal of breasts or removal of the penis and testes. The individual must also make a statutory declaration to confirm they have gender dysphoria, have lived in the opposite sex throughout the period of at least two years before the application, and will continue to live in the opposite sex for the rest of their lives. In addition, the individual must also have received hormonal treatment for two years before the application is made and must confirm that they will continue to undergo hormonal treatment and submit blood test reports when required by the Director of Immigration.

The government reiterated that the change to the gender marker on Hong Kong ID cards does not represent the holder’s sex as a matter of law. It also does not affect other government policies or the handling of any other gender-related matters under the law.

To apply for an amendment to the gender marker on the Hong Kong ID cards, the government previously required transgender individuals to undergo full sex-reassignment surgery. In February 2023, the Hong Kong Court of Final Appeal ruled that the requirement was unconstitutional. The court held that requiring transgender individuals to undergo the most invasive surgical intervention in the range of treatments for gender dysphoria went to far because it may be medically unnecessary. The court, therefore, required the government to present a more compelling reason to uphold the policy. Consequently, the court also held that a full sex reassignment surgery is not the only workable, objective and verifiable criterion to determine the application to change gender marker.

International human rights experts came up with the Yogyakarta Principles in 2006. Principle 3 provides for the right to recognition before the law. It specifically states, “[E]ach person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.” Principle 3 also provides that undergoing medical procedures should not be a requirement for legal recognition of people’s gender identity.

Requirements for legal gender recognition vary among different countries. South American countries such as Argentina, Brazil, Uruguay, Colombia and Ecuador have already provided legal gender recognition by self-determination. The revised policy adopted by Hong Kong is similar to the UK Gender Recognition Act 2004, except with an additional requirement of having completed certain surgical treatments.

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Ugandan court upholds anti-LGBTQ law but says some rights infringed

KAMPALA, April 3 (Reuters) – Uganda’s constitutional court refused on Wednesday to annul or suspend an anti-LGBTQ law that includes the death penalty for certain same-sex acts, but voided some provisions that it said were inconsistent with certain fundamental human rights.

The legislation, adopted in May last year, is among the world’s harshest anti-gay laws and has drawn condemnation from rights campaigners and sanctions from Western nations.

More: https://www.reuters.com/world/africa/ugandas-constitutional-court-upholds-anti-homosexuality-law-2024-04-03/

USA: Wisconsin governor vetoes transgender student-athlete bill

Wisconsin Governor Tony Evers vetoed a bill that requires schools to separate sports based on sex assigned at birth. The bill was seen by Evers and members of the LGBTQ+ community as being targeted against trans student-athletes. It was largely supported by Republican state legislators.

In his signed veto message, Evers cited two main legal arguments for vetoing the bill. The first is that the bill “ignores a transgender student-athlete policy created by the Wisconsin Interscholastic Athletic Association in 2015.” Under that policy, it was up to the individual school districts, in consultation with students and medical professionals, to create a policy around the participation of transgender athletes in sports.

The second legal argument that Evers advanced is the idea that the law violates Title VII and Title IX of the Civil Rights Act of 1964. Those provisions ban the government from discriminating on the basis of sex for purposes of federal employment or public education receiving federal funding. In the 2020 US Supreme Court case Bostock v. Clayton County, the court held that discrimination on the basis of sex was inclusive of discrimination against gay, lesbian, bisexual and transgender employees.

Lastly, Evers made a policy argument stating, “I believe this bill fails to comport with Wisconsin values. We expect our kids to treat each other with kindness, respect, empathy, and compassion and we should be able to expect adults to lead by example.”

In October 2023, the Wisconsin State Assembly passed Assembly Bill 377. The bill requires each school board, independent charter school and private school that operate or sponsor sports teams to designate the teams as all male, all female or coed. It also defines sex as “determined by a physician at birth and reflected on the birth certificate.”

Currently, 24 states have passed laws preventing transgender student-athletes from competing in the sports category that aligns with their gender identity.

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UK: Scotland’s controversial new hate crime law comes into effect

Scotland’s controversial Hate Crime and Public Order (Scotland) Act 2021 came into force on Monday. The law intends to unite existing hate crime laws, along with creating several new offenses, most notably criminalizing “threatening or abusive behaviour which is intended to stir up hatred.” Stirring up racial hatred has been an offense since 1986. However, this will apply to all protected characteristics, including disability, race, religion, sexual orientation, gender identity and varying sexual characteristics. This follows many concerns about its effects on freedom of speech and how it will be policed.

The act consolidates existing law on crimes “aggravated by prejudice” and racially aggravated harassment. It also abolishes the common law offense of blasphemy, which no one has been prosecuted in over 175 years. The maximum penalty is seven years imprisonment. First Minister Humza Yousaf has insisted that there is a “very high threshold” for prosecution, noting the act’s “triple lock” on freedom of expression: the Part 3(4) defence of reasonableness, compatibility with the ECHR and the requirement for explicitness.

Much initial criticism surrounded the act’s failure to criminalize hatred of women, with gender identities protected but sexual identities not. The Misogyny and Criminal Justice in Scotland Working Group fronted this, which recommended the introduction of a new act to combat misogyny. An amendment was proposed to add sex to the list of protected characteristics, but it was voted down. Former Scottish Labour leader Johann Lamont argued that “the case for including women is indisputable,” as they “understand hate crime more than any other group does.”

Further criticism has surrounded the effect the act may have on the debate surrounding transgender issues. SNP MP Joanna Cherry has been a major critic, certain the act “will be weaponised by trans rights activists to try to silence, and worse still criminalise, women who do not share their beliefs.”

Victims and Community Safety Minister Siobhan Brown blamed a lot of “misinformation” about the legislation for the criticism before falsely claiming that it was “passed unanimously” in 2021. It was approved 82-32 with four abstentions. Scotland’s first minister, Humza Yousaf, also defended the act, saying “a lot of disinformation” about the act’s reach had been “spread on social media, through some inaccurate media reporting, and by political opponents.” He was justice secretary at the time and had supported the bill through parliament. He argued that including “an aggravation for ‘sex’ rather than ‘gender’ could exclude trans women i.e. if a trans woman was attacked because they were perceived to be a biological woman rather than because they were trans”.

There has been an emphasis on defenses, with an amendment from Scottish Conservative MP Adam Tomkins that restated ECHR Article 10, protecting freedom of expression and its protections for offending, shocking or disturbing. It appears that what constitutes a criminal offense will be left to Police Scotland to decide, as Siobhan Brown explained in reference to whether misgendering a person would be an offense. There have also been concerns about police training to deal with the rise of criminal activity on social media that is expected to follow this law.

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USA: 16 College Athletes Are Suing the NCAA For Allowing Lia Thomas to Swim

The plaintiffs are seeking punitive damages and relief for emotional distress and the removal of Thomas and other trans athletes from the official NCAA women’s record books.

More: https://www.them.us/story/ncaa-lawsuit-lia-thomas-trans-athletics

Interesting Article:Margalit A. Still a blind spot: The protection of LGBT persons during armed conflict and other situations of violence. International Review of the Red Cross. 2018;100(907-909):237-265. doi:10.1017/S1816383119000201

More: https://www.cambridge.org/core/journals/international-review-of-the-red-cross/article/abs/still-a-blind-spot-the-protection-of-lgbt-persons-during-armed-conflict-and-other-situations-of-violence/0C9FC5D1F2AFBED6186AC2D1AA8829E1

Interesting Article:Hannah Nieratzky, A Much-Needed Queer Look at International Humanitarian Law: An Obligation to Monitor the Situation of Prisoners of War with Diverse SOGI?, Völkerrechtsblog, 04.03.2024, doi: 10.17176/20240304-220143-0

More: https://voelkerrechtsblog.org/a-much-needed-queer-look-at-international-humanitarian-law/