Problems and Challenges of Legal Recognition of Gender

Author: Tamar Avaliani

As a result of stereotypes, homophobic and transphobic attitudes in society, and the insensitive, often discriminatory policies of the state, many transgender people face rights violations and problems in appealing to the courts.

Transgender people face problems due to the unpredictable and discriminatory procedures of legal recognition of gender, which create artificial barriers to transgender people in terms of both social and judicial access.

Georgian legislation does not provide for the effective procedures necessary for gender recognition, which would make it possible for a transgender person to have the desired gender indicated in personal identification documents.

The Law on Civil Acts establishes unforeseen and inhumane procedures for the legal recognition of gender, creating artificial barriers for transgender people. Transgender individuals face major problems with changes to the civil record. According to the Law on Civil Acts, one of the grounds for making changes in the record of civil acts is gender reassignment. The law does not specify what is meant by gender reassignment, or procedure for changing the gender record, which makes the law even more vague and unforeseeable.

Legal recognition of gender in Georgia is related to medical procedures. In fact, there is no legal document that would regulate this issue in detail and create adequate legal opportunities for transgender people who want to change the gender record in their identification documents.

Despite the lack of legislation, state agencies and common courts require proof of surgery to change the gender record, which is extremely expensive and sometimes even life-threatening. In Georgia, as far as I know, sex reassignment surgery, including all its components, has not yet been performed. Above-mentioned surgery is dangerous to health. It causes permanent sterilization and irreversible health problems.

Transgender people have to choose between life-threatening surgery and legal recognition of gender. No trans-specific clinical guidelines and protocols have been developed in Georgia to protect the lives and health of transgender people. Also, there are no state programs to fund trans-specific surgical procedures. The costs of sex reassignment surgery are not reimbursed by insurance either. Due to the unreasonably expensive price of sex correction, no transgender person living in Georgia can have this operation. The European Court of Human Rights in the case of Schlumpf v. Switzerland explained that for a transgender woman in a post-operative condition, being refused surgery, given her age, was a violation of her right to privacy and family life because the state failed to strike a balance between the interests of the insurance company and the applicant.

According to the Public Defender of Georgia, the state forces trans people to undergo medical procedures related to sex reassignment without defining the standards of these procedures and the quality monitoring mechanism, which is the responsibility of the state. The Parliamentary Assembly of the Council of Europe (PACE) in its Resolution 2048 (2015) expresses concern over the existence of financial barriers to accessing sex reassignment procedures for transgender people and calls on States to make sex reassignment procedures accessible to transgender people; Ensure that these procedures are reimbursed from the public health insurance scheme and that the reimbursement-related limitations are lawful, objective and proportionate.

According to the World Health Organization (ICD-11) classifier, gender identity disorders have been replaced by the term gender incongruence. The Georgian medical system considers transgenderism in terms of full medicalization and pathology and does not take the wide spectrum of transgenderism into consideration.

In addition to personal stress, the contradiction between sex as defined in official documents and a person’s gender self-expression often becomes grounds for discrimination against transgender persons in labor relations, in public and private institutions, where the presentation of personal identification documents is required. In 2014 Committee on the Elimination of Discrimination against Women (CEDAW) discussed the issue and called on the Georgian state to “lift restrictions on transgender people obtaining identification documents.”

The European Court of Human Rights in the case – A.P. GARÇON AND NICOT v. FRANCE explained that requiring gender reassignment surgery for legal recognition of gender is a violation of the right to respect for private and family life under Article 8 of the European Convention on Human Rights. With regard to sexual orientation and gender identity, the Yogyakarta Principles clarify that everyone has the right to have their human rights without discrimination on the basis of gender. The law should prohibit any discrimination and ensure equal rights for all. General Recommendation # 28 of CEDAW obliges Member States to take appropriate measures to eliminate discrimination on the grounds of gender and sex.

Recommendation CM / Rec (2010) 5 of the Committee of Ministers of the Council of Europe on the elimination of discrimination on grounds of sexual orientation and gender identity sets out in detail the measures to be taken by the state to eliminate discrimination and calls on it to develop an effective legal instrument.

The Human Rights Committee notes in its concluding remarks that “the state should take effective measures against any form of social stigmatization of homosexuality, bisexuality or transgenderism, as well as to combat discrimination or violence against persons on the basis of hate speech, sexual orientation or gender identity.”

Therefore, it is important for the Ministry of Justice of Georgia to bring its legislation and practice into line with the World Health Organization ICD-11 classifier (Gender incongruence) and to transgender sex in identification documents based on a medical diagnosis of gender dysphoria and not to request a sex reassignment surgery certificate.

The case of Nikolo Ghviniashvili

With the legal assistance of the Georgian Young Lawyers’ Association, Nikolo Ghviniashvili filed a complaint to the European Court of Human Rights. The complaint concerned the refusal of state bodies to reflect the desired gender in Nikolo Ghviniashvili’s identification documents.

Nikolo Ghviniashvili is a transgender man living in Georgia, a citizen of Georgia, who has identified himself as a man since young age. Due to the discrepancy between Nikolo Ghviniashvili’s appearance and the gender indicated in the identification documents, Nikolo has repeatedly been the victim of degrading treatment and has had problems in his relations with public and private institutions.

Nikolo Ghviniashvili asks the European Court of Human Rights to find Georgia guilty of violation of Articles 8 (right to respect for private and family life), 3 (prohibition of torture) and 14 (prohibition of discrimination) of the European Convention.

Previous Story

How Can the Problems of the Queer Community in Georgia be Solved – Politicians’ Comments

Next Story

The United States has Issued the First Gender-neutral Passport

Latest news