US Supreme Court allows Idaho gender-affirming care ban for minors to go into effect

The US Supreme Court granted an emergency request for stay led by Idaho officials, allowing the state to temporarily enforce a statewide ban on gender-affirming care for certain minors. This ban is one of the first cases related to transgender health care to reach the nation’s highest court. Labrador v. Poe is the case that challenged the law enacted in Idaho last year, which prohibits treatments such as puberty blockers and hormone therapy for transgender minors.

Under the new law, physicians who provide gender-affirming care to transgender children could face up to 10 years in prison and up to $5,000 in fines. While the law can now be enforced statewide, it cannot be applied against the two plaintiffs who challenged it. Often, emergency docket decisions do not include reasoning. However, this 34-page decision included concurrences by Justices Neil Gorsuch, Samuel Alito, Clarence Thomas, Brett Kavanaugh and Amy Coney Barrett. 

The court’s written opinion emphasized that this case poses a question about “the propriety of universal injunctive relief, a question of great significance that has needed the Court’s attention for some time.” In other words, the Ninth Circuit granted relief to the plaintiffs and additionally decided the Idaho law’s enactment was to be halted. The Supreme Court ruled this was an overstep of the lower court’s authority. The court’s three liberal justices, Ketanji Brown Jackson, Sonia Sotomayor and Elena Kagan, objected to this decision, arguing that the law should have remained entirely blocked and that it was the natural order of a case to be challenged and move through the lower courts appropriately. 

The state of Idaho and its Attorney General Raul Labrador argue that “Every day Idaho’s law remains enjoined exposes vulnerable children to risky and dangerous medical procedures and infringes Idaho’s sovereign power to enforce its democratically enacted law.” The state says that since the plaintiffs both want access to a single procedure, it is unfair that the Ninth Circuit’s injunction applies to all 20+ procedures that the Idaho law regulates as they are two minors and their parents, and the injunction covers 2 million. 

The plaintiffs, two transgender teenagers whose identities are protected, argue that the law violates the Equal Protection Clause of the Fourteenth Amendment to the US Constitution, enforceable under 42 U.S.C. § 1983, which protects individuals and groups from discrimination by the government. The brief for the teens cites that the new law does not ban cisgender boys who are forecasted to have a post-pubertal height of 5’4″ or shorter as they may be treated with testosterone for “short stature.” Idaho doctors are thus free to prescribe testosterone to cisgender boys, including to affirm cisgender boys’ gender identity with overdeveloped breast tissue. Similar differences are allowed for cisgender girls to receive estrogen for specific delayed puberty issues. Thus, counsel argues that the law has “nothing to do with protecting children and everything to do with expressing disapproval of, and stigmatizing transgender people.”

This case is part of broader state jurisprudence across the country, with more than 20 conservative states enacting similar bans targeting care for transgender youth. This spring, appeals concerning similar laws in Tennessee and Kentucky will be up for consideration by the justices.

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Germany eases gender change rules

The German parliament has passed a law making it easier for citizens and residents to legally change gender.

More: https://www.bbc.com/news/world-europe-68801392

See the comments by Nora Eckert (in German): https://www.queer.de/detail.php?article_id=49125&pk_campaign=Nwsl

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Germany’s parliament, the Bundestag, passed the Self-Determination Act on Friday, allowing transgender and non-binary citizens to modify the gender marker on their legal documents through self-identification.

The Transsexuals Act is the German law that is currently in place to govern the legal requirements for modifying gender identity on legal documentation. Section 8 of the act requires that a transsexual person could be legally deemed the opposite sex if they are permanently incapable of reproduction and have undergone a surgical procedure that changes their external sexual characteristics. The law also requires transgender individuals to provide a local court with two expert reports attesting to “a high degree of probability” that the applicant will not want to revert to their previous legal gender. According to a report by the German government in 2017, obtaining these reports requires the disclosure of immaterial details from their childhood and sexual history. The report also found that the legal procedure could last for 20 months and cost an average of approximately 1900 euros.

The new act will abolish these requirements and make modifying gender entry easier. Under the act, transgender, intersex and non-binary people could change their gender entry by submitting an Erklärung mit Eigenversicherung, or a declaration with self-insurance, that assures the chosen gender entry or deletion of the gender entry best corresponds to their gender identity.

The act imposes an additional requirement for minors to have their gender entry amended. For minors up to 14 years old, the application can only be filed by their legal guardians who have also received appropriate advice when making the application. Minors aged 14 or above can apply with the consent of their legal guardians. The family court could also issue that consent if the court believes that the change of gender entry is in the best interests of the child.

The government contended that other civil rights associated with gender identity will not be affected or will be regulated by other legal reforms. For instance, the act dictates that gender entry in the civil status register will not affect the availability of gender-specific medical treatment. The availability should be determined based on individual needs, taking into account their biological and psychological circumstances. The act will also be an interim solution to replace “mother” or “father” with “parent” under parental law before further reform is carried out. Sports associations will also continue enjoying their autonomy to decide which people are admitted to which competition.

The German government previously set up a working group in light of the rising violence against the queer community within the country. The federal interior minister Nancy Faeser reported that 1,400 violent crimes against sexual minorities were recorded annually and that the number continued to rise in 2022.

Senior LGBT rights researcher at Human Rights Watch Cristian González Gabrera welcomed the enactment of the new law, claiming that “pathologizing requirements for gender recognition … have no place in diverse and democratic societies.” He added, “Germany’s new law sends a strong message that trans people exist and deserve recognition and protection.”

Principle 3 of the Yogyakarta Principles provides that self-defined sexual orientation and gender identity are integral to a person’s personality and should be legally recognized without the individual being required to undergo any medical procedures. Currently, 15 countries recognize gender registration based on self-declaration, and Spain and Finland recently passed legislation to recognize gender identity based on self-declaration.

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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