Key Benefits:
( Plenary Assembly of 27 June 2013)
1. By letter dated 8 January 2013, co-signed by the Seal Guard and the Minister for Women's Rights, the CNCDH was seized as part of the interdepartmental action programme against violence and discrimination committed by sexual orientation or gender identity. The referral concerns two issues related to each other without being assimilable to each other: the first concerns the definition and place of the "gender identity" in French law; the second relates to the conditions for amending the sex mention in the civil status. Transidentists (1) are often stigmatized or even discriminated against, and it is not certain that the terms of current legislation sufficiently protect them from the acts and threats they may face. In addition, the judicial course of change of sex always results in a deterioration of the social condition of the person, which has been forced for too long to live in a gender opposite to that recognized by his civil status.
2. The CNCDH does not know that the mention of sex remains, in our law, an essential element of the identification of persons and that civil status is of great symbolic importance in the French Republican tradition. In fact, the state of people has an essential role, both in terms of the general interest (as it allows a simple and safe identification of others) and in terms of the subject itself.
3. The CNCDH is also aware of the very precarious situation of transidentitarian people in France, victims of discrimination and social exclusion. Law, not only is not sufficiently protective for these people, but also helps to maintain them for many years in a situation of great social vulnerability. This is why the CNCDH considers it necessary to reform French legislation on gender identity and the process of gender change in civil status. The issues addressed, the issue of improving the fight against discrimination and defending the principle of equality before the law, are fully and closely linked to the promotion of fundamental rights.
4. In order to base its opinion, CNCDH has sought domestic jurisprudence and international texts on issues. She has also conducted numerous hearings of researchers, law professors, associative representatives and members of the Senate. Written contributions from NGOs, physicians, social scientists, and the Rights Defender were able to supplement the panel of arguments heard.
5. From all of this work, and after conflicting debates between its members, the CNCDH has adopted the principle of the introduction into the law of the "gender identity" criterion. The urgency of a change in the procedure for amending the sex mention in the civil status has also prompted members to recommend a total dismedicalization and partial diversion of the procedure.
I. ― Gender identity
6. The concept of gender identity is not present in French law. When the Sexual Harassment Act was passed on August 6, 2012, the notion of sexual identity was preferred to gender identity (2). It was added to the mention of sexual orientation in order to protect transsexual or transgender people, as stated in Circular CRIM 2012-15/E8-07.08.2012 of application of this Act. The terms "sexual orientation" that appeared in theArticle 225-1 of the Criminal Code have thus been replaced by section 4 of the Act by the terms "sexual orientation or identity (3).
7. Nevertheless, although the concept of gender identity does not appear in French legislation, it is present in several international texts. Gender identity was introduced as a precise definition by a college of international law experts from all continents, for the UN in 2007, in the principles of Jogjakarta. These are reflected in the report of the United Nations High Commissioner for Human Rights in November 2011. The definition given in the principles of Jogjakarta is as follows: "The "gender identity" refers to the intimate and personal experience of its kind deeply lived by each, whether or not it corresponds to the sex assigned to the birth, including the personal consciousness of the body (which may involve, if freely consented, a modification of appearance or bodily functions by means of medical, surgical or other expressions) and »
8. The concept of gender identity is also present within the Council of Europe's human rights system. Thus, in 2009, the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, published a thematic document entitled Human Rights and Gender Identity (4), in which he made twelve recommendations to the Member States, calling for respect for human rights and transsexual and transgender people. States are therefore invited to "implement international human rights standards without distinction and expressly prohibit discrimination based on gender identity in national anti-discrimination legislation". It is also emphasized that this implementation at the national level " should be based on the principles of Jogjakarta on the application of international human rights legislation in relation to sexual orientation and gender identity."
9. In its draft report dated 17 May 2013, the Commission on Equality and Non-Discrimination of the Council of Europe also invites States "to ensure that any new legal and policy instrument they adopt in the field of equality and non-discrimination explicitly includes sexual orientation and gender identity."
10. Like the Council of Europe, which uses the concept of gender identity in its recommendations, the European Union also adopted it. For example, Directives 2011/95/EU (Directive Asylum Qualification) and 2012/29/EU (Directive on the Rights of Victims of Crime) are the first texts to mention this concept in both French and other languages. "Gender identity" is translated by "gender identity".
11. Hence, the "gender identity" is already a legal concept that has entered into force throughout the European Union, including in France. The introduction of the "gender identity" criterion in legislation would bring French law into line with European and international law.
12. In addition, the replacement of the terms "sexual identity" by those of "gender identity" would help to rectify inappropriate terminology as it contributes to the lack of knowledge and prejudices that affect transidentity. So, in theArticle 225-1 of the Criminal Code, as in all the provisions in which they have been introduced, the terms of sexual identity are placed next to those of sexual orientation ("sexual orientation or identity"), which reinforces the amalgam commonly made between trans and homosexuals, while, as the people hearing, transidentity is a question of identity and not of sexuality (6).
13. Finally, the presence of the mention of "sex" in the terms "sexual identity" of the current legislation seems to reduce the issue of transsexualism to a morphological question, the term "sex" and its "sexual" derivative, first referring to the primary and secondary sexual characters of the person. In accordance with the definition given by the principles of Jogjakarta, the concept of gender identity refers to an intimate and personal experience that is independent of the morphology of people. From this perspective, people called "transgenders", i.e. people who have not received medical treatment for sexual reassignment, and whose sexual morphology differs from their gender, would be more adequately protected by the "genus identity" criterion.
14. The Commission also emphasizes that the introduction of the concept of "gender identity" in the legislative arsenal does not in any way involve taking part in the orientations and exchanges of researchers in the social sciences related to gender studies, who are themselves plural and sometimes competing. The "gender identity" refers only to an intimate perception and experience of self disconnected from physiological determinations.
15. Thus, because it would allow for the enforcement of national law with European law, and because it would increase the terminological precision of the law and thus contribute to an improvement in the fight against discrimination, the CNCDH supports the principle of the introduction in French legislation of the concept of "gender identity" (7).
II. ― Change in gender in civil status
II-1. The problems posed by jurisprudence
16. With regard to the change of gender in civil status, French law is characterized by the absence of any legislative or regulatory provision. The system is based in its entirety on a jurisprudential construction, which contributes to making the situation of transidentity people wishing to change their civil status particularly precarious and difficult. They are in fact exposed to differing interpretations of the law made by the courts, which poses the problem of the effectiveness of these rights. Therefore, only a legislative intervention would be able to improve the condition of the persons concerned. Such an intervention should allow for a simplification and unification of the path leading to the recognition of a new legal identity.
17. The conditions for the change of sex are now set by four judgments of the Court of Cassation, two rendered on 7 March 2012 and two others on 13 February 2013. These judgments set out the following principle: "To justify a request to rectify the sex in an act of birth, the person must establish, in view of what is commonly accepted by the scientific community, the reality of the transsexual syndrome of which it is attained and the irreversible nature of the transformation of its appearance. Two conditions are thus laid: the diagnosis of transsexualism and the irreversibility of the transformation of the physical appearance. A circular dated 14 May 2010 also invited the judge to "prove an opinion favourable to the request for a change of civil status as soon as hormonal treatments that have the effect of a definitive physical or physiological transformation, associated, if any, with plastic surgery (prosthetics or removal of mammary glands, cosmetic facial surgery...), have resulted in an irreversible sex change, without requiring the removal of the genitals". If surgical intervention is not required, the law requires irreversible medical treatment, which includes an obligation of sterilization. The notion of irreversibility, invoked in the circular and resumed in the judgments of the Court of Cassation, thus appears as an element to justify the derogation from the principle of unavailability of the state of persons (8). But it is precisely this notion of irreversibility, poorly defined and difficult to prove, which results in a very frequent request for medical expertise.
18. It appears in this regard that jurisprudence is very fluctuating from one jurisdiction to another. While some courts systematically order one or more expertise (medical, endocrine or psychiatric), other tribunals consider it sufficient to treat doctors who are recognized for their jurisdiction in this matter. The situation of persons who are transidentists is thus characterized by a great inequality depending on the courts where the petitions are filed and, consequently, by a great legal insecurity. This situation was already denounced by the circular of 14 May 2010 as discriminatory.
19. In addition, expertise, apart from the fact that they are lived as intrusive and humiliating by the people concerned, contributes to extending the duration of the sex change process to the civil status, which is currently considerable, since it is two to nine years. During this period, transidentity people cannot change their identity papers, which very deeply affects their daily lives, as their appearance does not correspond to the sex indicated on their papers. This dichotomy notably hinders their access to housing, employment and social rights (9). It also helps to create discriminatory situations against which the anti-discrimination legal framework does not necessarily offer protection, even in the case that the "gene identity" criterion would be introduced in French legislation (10). It thus constitutes a violation of the dignity of persons.
20. The sum of the evidence imposed by the jurisprudence and the frequency of requests for expertise also poses the problem of the suspicion that too often weighs on transidentitarian persons, and which is felt by them as a form of denial of identity. For, as the transidentists themselves bear witness, affirming themselves as a man or woman is not a matter of choice or of will and does not fall within an arbitrary, conjunctural or phantasmatic decision: this assertion is on the contrary always linked to a profound conviction that is often felt from childhood, and which is not a passing identification, but rather to the very identity of the subject, of what it is. The presumption that the current procedure seems to have a plan on this intimate and profound conviction thus adds a cause of psychic suffering to the prejudices that are often suffered by the persons concerned, since transidentity is still too common to a fantasy, mental illness or even perversion. Like the European Court of Human Rights, the CNCDH considers that the right, by refusing to dedicate the social appearance of a transidentitarian person for many years, places the person "in an abnormal situation inspires him with feelings of vulnerability, humiliation and anxiety (11)".
21. In the course of its work, the CNCDH was therefore obliged to reflect on the modalities of simplification and harmonization of the procedure. Two parameters are at stake: that of the medical conditions required by the judgements of the Court of Cassation of 7 March 2012 and 13 February 2013 as well as the very principle of judicialization of the proceedings. On these two points, the CNCDH was led to take a position. It favours the elimination of medical conditions and recommends partial diversion of the sex change procedure to the civil status.
II-2. Medical conditions of the sex change procedure in civil status
22. The first medical condition of the case law concerns the establishment of a "gender dysphoria syndrome". The 2009 report of the High Health Authority (12) states that, as part of the medical process leading to the morphological transformation of the transsexual patient, the diagnosis of gender dysphoria is required as a differential diagnosis, in order to ensure to doctors, upstream of endocrine or surgical treatment, that the suffering of the patient does not come from other possible causes, such as mental illness. But, placed within the judicial framework, the requirement for a certificate of "gender dysphoria syndrome" is problematic as the formulation itself seems to validate a pathologization of transidentity, although gender identity disorders were removed from the list of psychiatric conditions by a decree dated 8 February 2010 (13). The application for certification of a gender dysphoria syndrome, which is required as a differential diagnosis within the strict framework of medical procedures undertaken by transsexual people, contributes, within the judicial framework, to the stigmatization of these people and to the incomprehension of what the reality of transidentity is. For this reason, the CNCDH recommends that this condition be removed from the gender change procedure in civil status.
23. The second medical condition concerns proof of irreversibility of physical appearance. This condition compels the persons concerned to follow medical treatments with very heavy consequences, which involve an obligation of sterilization. This obligation does not necessarily pass through surgical sexual reassignment operations, but can be obtained by hormonal treatments, which the High Health Authority indicates that, taken over the long term, they are likely to result in irreversible changes in metabolism. However, it appears that the reaction to hormone treatments differs depending on patients, with effects (including sterility) that are obtained in more or less long term. In other words, the judicial procedure depends on the advance, random, of the medical procedure, which contributes to creating situations of high inequality between the persons concerned. Moreover, the irreversibility of the physical appearance is difficult to prove, and very frequently justifies, in the eyes of the judges, a request for medical expertise, despite what was recommended in the circular dated 14 May 2010, which called on the magistrates "to seek expertise only if the elements provided reveal a serious doubt about the reality of transsexualism of the applicant." Because expertise, in addition to the cost it entails for the appellant, contributes to an unacceptable lengthening of the proceedings. In addition, when hormone treatments are not sufficient to prove the irreversibility of physical appearance, people seeking to change the mention of sex on their civil status are often forced, as a last resort, to accept surgical operations (e.g., ectomy or mastectomy). The medical conditions imposed by the law are therefore problematic, since some persons who do not wish to resort to these treatments and operations nevertheless accept the constraint in the hope that the judicial proceedings in which they are brought are brought to fruition. As a result, the CNCDH requests that any request for sexual reassignment be terminated, that it undergo hormone treatment that leads to sterility or that it means the use of surgical operations.
24. Such a legislative intervention would be consistent with the recommendations made in 2009 by the Commissioner for Human Rights of the Council of Europe, Thomas Hammarberg, in the aforementioned thematic document, Human Rights and Gender Identity. The Commissioner invited Member States to "establish rapid and transparent procedures for change of name and sex on extracts of birth certificates, identity cards, passports, diplomas and other official documents", and called for "to stop subordinating the recognition of a person's gender identity to a legal obligation of sterilization and submission to other medical treatments". Resolution 1728 voted on 29 April 2010 by the Parliamentary Assembly of the Council of Europe goes in the same direction, since it calls on Member States not to rely on the surrender of "official documents reflecting the chosen gender identity" of a "precondition for sterilization or other medical procedures such as a sexual conversion operation or hormone therapy (14). »
II-3. The issue of procedural judicialization
25. In order to find solutions to speed up and harmonize the process of gender change in civil status, the work of the CNCDH has also led the CNCDH to question the relevance of the judiciarization of the process. In this regard, the hearings conducted by the CNCDH have provided three possible alternatives to the current situation. The first would be to introduce a "referred" procedure; the second is that of a total diversion of the process; the third is a partial diversion. With regard to the various arguments and objections that have been put forward for these three solutions, the CNCDH is advocating partial diversion. To clarify this recommendation, the three solutions will be discussed and discussed in the following paragraphs.
26. The social and economic vulnerability in which transidentity persons are maintained, during the period when their gender does not coincide with the mention of sex on identity documents, constitutes an emergency situation which seems to justify a priori the use of a referendum procedure. The question was therefore asked whether a judge adjudicating in a referendum could order urgent action, as it was possible under the Civil Procedure Code; these urgent measures to protect the requesting person could be the modification of identity documents, the change of name and the modification of the social security number. The change of civil status itself would remain within the purview of the judge of the merits. During the waiting period for the change of sex to civil status, the transidentity person would have identity documents in accordance with the claimed sex, which would remove the obstacles currently hindering the daily lives of persons engaged in such procedures.
27. However, it appears that this solution has several objections. The first is that the referred procedure would increase the current procedure by adding an additional step to that already in force. The second is that the use of a referendum procedure would face the nature, by provisional definition, of the orders of the judge adjudicating as a reference: the modification of the identity documents cannot be considered an interim measure. The third is that the Referee Judge would always have the opportunity to refuse these applications on the basis of a "serious challenge" as provided for in the Civil Procedure Code. He could then refer the procedure to the judge of the merits or ask for an instruction, the risk being to recover the pitfalls of the current situation.
28. The second option would be a total diversion of the proceedings, which would then consist of a simple statement made before a civil registry officer. This is the option chosen by Argentine law (15), which contains an important guarantee: in the case of a second request for a change of sex in civil status, the processing of the request is then the judicial procedure. In Argentine law, the declarative procedure goes hand in hand with the recognition of a new subjective right, the right to recognition of its gender identity, which serves as the basis and justification for the declarative procedure.
29. The total diversion would speed up the process of changing the sex statement to the civil status. Nevertheless, because the mention of sex remains, in our right, an essential element of the identification of persons, and because the civil status is of great symbolic importance in the French Republican tradition, it is the action of the judge, not that of a civil officer, who is considered to be protective and guarantor of the general interest and individual rights. The state of persons has an essential role, both in terms of the general interest (as it allows for a simple and safe identification of others), and in relation to the subject itself: the action of the judge thus appears as a necessary milestone in the procedure of sex change in the civil status, even under a simple control or validation.
30. For these reasons, the option of partial diversion of the proceedings is therefore best able to guarantee a prompt and respectful procedure for the rights of transidentity persons. The procedure would be in two stages: it would consist first of all in a statement to a civil officer, with the production of at least two testimonies attesting to the claimant's good faith, the quality of these testimonies to be given particular attention. Thus, they will not be required to emanate from persons with an alliance, kinship or subordination with the applicant. This first step should then be checked and validated by a seat judge through a registration procedure. The legislation governing the change of sex in the civil status should then specify two elements: on the one hand, the deadlines in which the registration must take place, in order to ensure the speed of the proceedings; on the other hand, the reasons for which the judge is able to refuse the registration for this type of application, these grounds must be explicitly limited to the manifestly fraudulent nature of the application and the lack of discernment of the applicant (16).
31. The solution of a partial diversion would therefore have the dual advantage of speeding up the procedure for changing the sex statement to the civil status, and guaranteeing both respect for the general interest and individual interest, since the validation of the decision falls within the judicial authority. The action of the judge, in the context of a partial diversion procedure strongly governed by the law, can thus be considered both as guarantor of the law and respectful of the fundamental rights of persons.
32. Thus, in view of the stalemates of the current jurisprudence that can be considered stigmatizing, if it is not discriminating with respect to transidentists, in view of the international texts that invite to lift the medical requirements of the current procedures, and in view of the need to recognize to these persons the right to live in a genre that does not fall within a choice but of an intimate and profound conviction, the Cjudicialization partial decialization
(Results of the vote: 30 votes for, 4 votes to, 8 abstentions.)
A N N E X E
LIST OF PERSONS
Maryvonne Blondin and Michelle Meunier, Senators, co-chairs of the Senate Working Group on Gender and Civil Identity Issues.
Daniel Borillo, lecturer at the Université Paris Ouest-Nanterre (Paris-X).
Dominique Fenouillet, Professor of Law at Panthéon-Assas University (Paris-II).
Brigitte Goldberg, president of the Trans'Europe collective.
Laura Leprince, president of ID Trans' and member of the gender identity committee of homosexuality and socialism (HES).
Samantha Montfort, member of the Ortrans association.
Philippe Reigné, agrégé des faculties de droit, professor at the Conservatoire national des arts et métiers (CNAM).
Diane Roman, professor of law at the University of Tours.
Natacha Taurisson, National Trade Union Officer at SGEN-CFDT, who is responsible for the mission on LGBT issues.
Written contributions
Amnesty International.
Collectif Santé trans.
Rights defender.
Jean-Michel Dubernard, professor of universities and hospital practitioner at Claude Bernard University - Lyon-I, member of the High Health Authority.
Laurence Hérault, lecturer at the University of Aix-Marseille.
Jeanne Swidzinski, member of the CGT LGBT collective.
