ECHR found a violation on the case of legal gender recognition of trans men. According to the statement published by the European Court, it has been established that Article 8 of the
Author – Megi Tedoradze
Posthumanism, the End of Gender and Possibility of Equality
In recent years the term “posthumanism” is often found in the narrow academic, but also in the public discourse of developed countries. The significant development of technology from year to year has respectively gained attention from not only those directly interested in this field but also from all people who have access to the Internet and technology.
ChatGPT-4, released by OpenAI on March 13, 2023, is only one example of the many AI-based tools we already use in our daily lives. These tools are not only exciting and make us feel that we are closer to a more convenient and inclusive future, but also often cause serious anxiety.
In this article, instead of the negative expectations, we will talk about the positive possibilities that the development of technology opens up for feminist and queer projects. Noteworthy, this article is not only about technology. Our main frame of thought is gender performativity on the one hand, and philosophical posthumanism on the other, which is based on the principle of technological development, but also implies many other important conceptual assumptions.
What is Posthumanism?
The term “posthumanism” is an umbrella term that unites several different frameworks of thought: philosophical, cultural, and/or critical posthumanism; liberal or/and democratic transhumanism; new materialism; anti-humanism; ontology of objects; metahumanism.
Of course, each perspective is based on different political projects and stands on different ideals, but each of them shares the assumption that human beings are not the center of the universe and that the anthropocentric point of view is wrong, outdated, and harmful. Consequently, posthumanism, as a unifying term, aims to break the unequal ties that exist between humans, animals, and technology. Beyond that still stands the thought that humans in the post-humanist world cannot be even the theoretical axis of the world, and the point of view that humans are the highest species should be criticized till the last minute. Examples of this can be found of course not only in post-humanist but also in the anthropological discourse in which the human and in this case – Homo sapiens, is not the most developed species, but simply one of many existing ones. However, it should be noted that posthumanism and its project offer an even more expanded vision of the (posthumanist) future of mankind, where not only organic species but also inorganic objects and technological subjects are considered.
One of the earliest incarnations of the posthumanist ideal is the cyborg of feminist philosopher Donna Haraway, from her central work A Cyborg Manifesto (1985). Haraway’s cyborg, according to the author, is the face of a utopian, feminist, and socialist myth. A cyborg is a composite entity of organic and mechanical parts that breaks down the distinct boundaries between organism and machine, physical and non-physical, and most importantly, technology and subject/self. According to Haraway, the cyborg should become the main tool of equality.
By the same principle, posthumanism breaks down the clear boundaries between human and non-human, male and female, physical and virtual, nature and culture, which are essential to the postmodern feminist project, which in turn challenges seemingly stable categories of the identity, which we will discuss in more detail below.
In this way, posthumanism does not stand for the connection between opposites, but, on the contrary, it completely excludes inflexible dualistic thinking. Through deconstruction, human loses the role of the master, and humanism is no longer universalized to a specific group of people.
What is the reasoning behind this? – When talking about a human being, it is important to understand that historically a human did not represent a simple unity of people but considered exclusively a specific group of people, which is why countless categories of people remained and still remain outside the humanist discourse.
Who is the subject of humanism?
We have already talked about what posthumanism is against, i.e. what is the “post” in the term. However, it is important to pay attention to the second part of the term – “humanism”.
Humanism is directly related to humans, although humans in the framework of “humanism” does not represent the unity of all living or non-living people. As we have already mentioned, if we look through our historical past, we will see that the human category was mostly used for a very specific group of people. In the Western world, this group included exclusively white heterosexual men and excluded from its definition historically oppressed groups – women, queers, non-white people, etc.
To be able better understand the meaning of the posthumanist project, we should ask the question – how did the representatives of the historically dehumanized (left outside the human category) group manage to deal with their own humanity? This problem is posed not only by posthumanist ideas but also by feminist thought. The understanding of women, the complete exclusion of transgender people from the discourse, and the non-recognition of non-binary identities are just a few examples of the problem raised by the narrow category of “humanism”.
Gender and humanism
We can draw many parallels between gender and the historical understanding of the human concept. The reason for this is that historically only hegemonic groups have been able to normalize identity categories. These groups were represented by those who already had the privilege of being included in the “human” category, therefore, as mentioned above, “others” were a priori excluded from it. However, one of the early feminist texts, which has been revised many times acquiring different forms and meanings, although conceptually, still does not lose its importance, will help us to illustrate the above-mentioned. This text is the main work of the existentialist philosopher, Simone de Beauvoir – “The Second Sex” (1949), where she writes the most famous phrase in feminist studies: “One is not born, but rather becomes, a woman”. And then she continues: “No biological, psychological, or economic fate determines the figure that the human female presents in society; it is civilization as a whole that produces this creature”.
Thus, de Beauvoir describes a woman as a process, not an essence. According to Beauvoir, being born as a woman and becoming a woman are two different things: the first has to do with biology, and the second with culture (it should be noted that this thought has been significantly criticized in the last two decades, which we will discuss in detail below). Speaking of culture, we must also repeat that cultural paradigms are created by those assumptions and subjective preconceptions, which are created by a certain part of people – historically, men. Let’s get back to Beauvoir – in “The Second Sex” she refers to the woman as the “other”. What does the term “other” mean? – Beauvoir notes that the definition of “woman” was formed according to her relation to a man. In this way, the conceptual framework of a man implied stability, and individuality, while a woman was “other” in relation to this already existing framework. Thus, the woman was perceived as a secondary, “other” human being and, therefore, did not have access to the reins to produce culture. To put it more simply, the man was self-defined, and the woman was defined only in relation to a man – she was either in harmony or in conflict with the cultural image of the man and thus, did not represent an individual subject.
As we see, Beauvoir’s framework is still relevant to this day, although, from a posthumanist point of view, it has one major problem. As an existentialist philosopher, Beauvoir finds the relation between the individual and the “other” not only in the male/female dichotomy but also in other parts of the culture. Dichotomous thinking (dualism, as we called it above) is problematic for posthumanism because it considers only two poles and excludes the diversity that exists between these two extreme poles or even beyond them.
If we consider that a person is not one or the other depending on one, but many, we will see that the human categories produce, and create each other not unilaterally, but collectively. Thus, posthumanism emphasizes the interdependence of humans (by inclusive definition), animals, and technology, and thus breaks the dualistic notion of gender as well.
Performativity of the gender
It is impossible to talk about the anti-dichotomous definition of gender without mentioning performativity. I think that introducing this term will help us, on the one hand, to doubt the objective reality of gender again. While on the other hand, we will be able to deconstruct social gender norms and see more clearly the possibilities that posthumanism offers us on the way to equality.
“Gender performativity” is a term coined by Judith Butler, one of the most influential postmodernist philosophers and gender researchers of modern times. In her work Gender Trouble: Feminism and the Subversion of Identity (1990), Butler argues that gender is not only a cultural construct but also an entirely unstable and fluid feature of human existence. Therefore, she writes:
“Gender is in no way a stable identity or locus of agency from which various acts proceed; rather, it is an identity tenuously constituted in time – an identity instituted through a stylized repetition of acts”.
Butler begins “Gender Trouble” by talking about feminism, or rather its critics. She points out the desire to identify the subject to be the main problem of modern feminism and writes that, in fact, there is no such category named “woman”. It should be mentioned that in this part, she is not original and relies not on her personal opinion, but on the opinion of many other feminist authors who have tried to analyze the concept of “woman” before. However, unlike the others, according to Butler, feminism must abolish its subject and, without the term “woman”, consider the diversity of the group on whose behalf it speaks: “Identity categories tend to be instruments of regulatory regimes, whether as the normalizing categories of oppressive structures or as the rallying points for a liberatory contestation of thar very oppression”.
Butler, of course, does not deny that in certain moments of history, subjectivization of women groups and choosing this method of struggle was necessary, although she thinks that there is no longer a need for it, and this method will bring more harm than good since the feminist project will not be able to unite people who remain outside the seemingly solid categories of identity.
Performativity and the act of repetition, which is one of the main characteristics of “gender identity”, may mean that the “subject” “constructs” gender by repeating the codes given in their culture. However, this assumption is completely wrong within Butler’s theory. In fact, according to her, the subject does not create its own gender, but on the contrary, it is forming as a subject, while creating gender. Thus, there is no actor beyond the act [of creating gender]. And this, in turn, to some extent cancels the subject who can “choose” the gender.
Here Butler precisely shows the essential difference between performance (which presupposes the pre-existence of the subject) and performativity (which does not). According to her, performativity does not imply that the subject does not exist at all but is an indication that the subject is not where we expect it to be – that is, it does not lead the action.
Performativity of sex
The category of “sex” is a name that enslaves.
In her second, equally influential text, Bodies That Matter, Butler expands on gender theory and argues that sex is also culturally constructed and that it is completely unclear what sex “really” means.
In “Bodies That Matter” Butler writes that the world is given to us only culturally, and if according to the classical definition, culture is represented by gender (recall Beauvoir’s position), and gender by nature (biology), it turns out that as long as we only have access to culture and know nothing about the pre-cultural, we cannot have any idea about gender, and therefore, we understand gender culturally. This is Butler’s main argument when she formulates the opinion that sex is a gendered category.
In this matter, Butler derives entirely from the assumption of body politics which tells us that the body does not exist outside of discourse. In her opinion, everything that is given to us in the world is already culture. Since “sex” is a political and cultural interpretation of the body, there is no sex/gender distinction; gender is built into sex, and sex proves to have been gender from the beginning.
Each of these concepts, of course, begs the question of how performative gender can be broken down. On the one hand, if the subject does not form gender, but gender is formed by repeated bodily acts (for example, clothing, body movements, manner of speaking, etc.), how is it possible to turn the paradigm [subversion] and break this already existing order? Easily speaking, how is resistance possible if subjects are not involved in the process of creating gender at all? – The fact that the subject is not pre-existing, while identities are constructed, allows us to reconstruct identities so that they oppose the power structures.
According to Butler, one of the ways of subversion is to show the parody of heterosexuality and sex-gender forms. In her early works, she thinks that drag culture does this best: “By imitating gender, drag implicitly exposes the imitative structure of gender itself as well as its randomness”. Therefore, she concludes that it is possible to appropriate gender norms in such a way that they contradict their own historically precipitated effects and thereby create a moment of rebellion in the same history – a moment that will establish the future by breaking the past.
The end of gender and the possibility of equality
Assuming the performativity of gender on the one hand, and turning to posthumanism on the other hand, we should ask the main question: what does the end of gender mean and what possibilities are opened by deconstructing gender in the posthumanist world? On the one hand, such formulation of the question is already problematic, since the end automatically presupposes the existence of gender before it, and if we claim that gender does not objectively exist, how can it be “ended”? In fact, by the end of gender, we do not mean any objective reality, but the understanding of the instability of culturally already constructed forms of gender, instrumentalization of their performative character, and establishment of new ways of resistance.
Posthumanism opens up countless ways of resistance. We can recall Donna Haraway’s cyborg, which, by appropriating physical parts, creates not only a hybrid being between man and machine but also a being that cannot be inscribed in the female-male dichotomy and naturally excludes the existence of a firm, stable gender or sex in a semi-mechanical body. To quote Haraway herself, a cyborg has no sex at all.
However, we must also take into account that Haraway’s cyborg is a material being that exists in a material world. While posthumanism also breaks the myth of the stability of the material world and emphasizes the importance of the digital world. Who are the subjects of the digital world? What is their essence? Is it possible for a virtual being to have a self? Is it possible for it to have a gender or even sex? These are questions that can be answered from many different points, but one thing is clear – gender, which is distinctly non-binary and includes a spectrum of different identities, is itself destabilized and deconstructed. There is no stable gender “identity”. Thus, neither Beauvoir’s man nor her “other” woman exists. There is only performativity, constant fluctuation, and hundreds of ways of resistance.
To sum up, it can be said that, on the one hand, the performative nature of gender, which completely excludes its foundation in materialism, and on the other hand, posthumanism, which stands for the replacement or complete abolition of the material world, offers opportunities for those groups of people who, historically, have constantly remained outside of humanistic [humanity] framework. By combining these two loci of thought, a performative posthumanism is formed, where the materiality or objectivity of the performance completely loses its meaning, the person is no longer the central being, the distinction between the living and the non-living, and the woman and the man is completely dissolved, and new, much more interesting ways of equality are born.
 BUTLER, “PERFORMATIVE ACTS AND GENDER CONSTITUTION,” 519.
 BUTLER, TROUBLE, 3.
 IBID, 3-44.
 JUDITH BUTLER, “IMITATION AND GENDER INSUBORDINATION”, IN INSIDE OUT: LESBIAN THEORIES, GAY THEORIES, ED. DIANA FUSS (LONDON: ROUTLEDGE, 1991), 13–14.
BUTLER, TROUBLE, 147.
 BUTLER, TROUBLE, 144.
 JUDITH BUTLER, EXCITABLE SPEECH: A POLITICS OF THE PERFORMATIVE (NEW YORK AND LONDON: ROUTLEDGE, 1997), 174.
Beauvoir, Simone De. The Second Sex. Translated by Constance Borde and Sheila Malovany-Chevallier. 1st edition. New York: Vintage, 2011.
Butler, Judith. Bodies That Matter: On the Discursive Limits of Sex. 1st ed. Routledge, 2011. ———. Gender Trouble: Feminism and the Subversion of Identity. Routledge, 2011. ———. “Imitation and Gender Insubordination”. Cultural Theory and Popular Culture: An Anthology, (2009).
Ferrando, Francesca. Philosophical Posthumanism: Theory in the New Humanities. 1st ed. Theory in the New Humanities. Bloomsbury Publishing, 2019.
———. “Posthumanism, Transhumanism, Antihumanism, Metahumanism, and New Materialisms: Differences and Relations” 8, no. 2 (2013).
Haraway, Donna. A Cyborg Manifesto. University of Minnesota Press, 1985.
Hayles, N. Katherine. How We Became Posthuman: Virtual Bodies in Cybernetics, Literature, and Informatics. Chicago, Ill: University of Chicago Press, 1999.
 BUTLER, “PERFORMATIVE ACTS AND GENDER CONSTITUTION,” 519.
 BUTLER, TROUBLE, 3.
 IBID, 3-44.
 JUDITH BUTLER, “IMITATION AND GENDER INSUBORDINATION”, IN INSIDE OUT: LESBIAN THEORIES, GAY THEORIES, ED. DIANA FUSS (LONDON: ROUTLEDGE, 1991), 13–14.
 BUTLER, TROUBLE, 147.
 BUTLER, TROUBLE, 144.
 JUDITH BUTLER, EXCITABLE SPEECH: A POLITICS OF THE PERFORMATIVE (NEW YORK AND LONDON: ROUTLEDGE, 1997), 174.
The LGBTQ community has a long history of fighting for equal rights and acceptance all over the world, including Georgia. To admit the importance of a society that respects and protects the rights of LGBTQI individuals, three main aspects should be considered: freedom of expression and assembly, freedom from psychological and physical violence, and employment opportunities. In the article, we will discuss what the situation has been in Georgia over the years in terms of the legal status of the LGBTQI community.
Freedom of expression and assembly
Freedom of expression and assembly plays a crucial role in the development of LGBTQI rights in Georgia. All individuals should have the freedom to openly express their sexual orientation and gender identity without discrimination or fear. By providing LGBTQ people with safe spaces for assembly, such as Prides, protest rallies, and public events, Georgia can promote visibility and encourage dialogue on LGBTQ issues. Protecting the rights of expression and assembly means that LGBTQI voices are heard and respected, which leads to increased awareness, understanding, and social progress.
The use of the right to assembly and expression is still a significant problem for LGBTQ people in Georgia, which is related to certain groups’ attempts to privatize public space. The dominant religious, as well as ultra-conservative violent, groups have limited the LGBTQ community in enjoying the freedom of assembly, and any appearance of LGBTQ people in the public space is “perceived as propaganda of homosexuality”.
Events of 2019
Year after year, May 17th (IDAHOT), the International Day Against Homophobia, Transphobia, and Biphobia in Georgia, has become a day for manifesting homophobic attitudes existing in institutions and society. Noteworthy, despite numerous public calls for violence from these groups, no appropriate and adequate response from law enforcement agencies has been made. For example, in June 2019, a number of public calls for violence were made by an ultra-conservative and violent group related to the “March of Dignity” as part of the “Tbilisi Pride Week”. They announced the creation of “People’s Legions” and patrolling the streets, however, even though the Ministry of Internal Affairs formally launched an investigation into this fact, it has not yet resulted in any decisions
We should also mention the events that took place at the premiere of the movie “And We Danced” on November 8, 2019, in Tbilisi. Violent groups gathered near the cinema openly confronted both the audience which came to see the movie and the police officers. 27 violations of administrative law were registered right there, concerning which the investigation was started, especially about the attack on the policemen and the damage to the police car. However, it should be noted that the state was careless before the premiere of the film regarding the statements of the leaders of violent groups, who issued public threats and called on supporters to disrupt the screening.
In June 2019, within the “March of Dignity” during the “Tbilisi Pride Week”, the Ministry of Internal Affairs of Georgia refused to ensure the safety of the participants of the event, at the same time, the Patriarchate of Georgia issued an official statement calling on the Georgian government not to allow the “March of Dignity” organized by “Tbilisi Pride” to be held. In response, on June 14, supporters of “Tbilisi Pride” held a rally in front of the Government Chancellery, demanding the state to guarantee their right to assembly. Some of the organizers and activists of the rally were confronted by ultra-conservative political and clerical groups, whose leaders and members openly expressed violent intentions.
Events of July 5-6, 2021
During the week of July 1-5, LGBT+ groups and their supporters, the civil movement “Tbilisi Pride”, as well as the “Shame Movement” and other civil activists organized Pride events. July 5th was supposed to be the culmination of these events, ending at 6:00 PM with the “March of Dignity” in the central district of Tbilisi. Radical, far-right, conservative, and violent groups in Georgia started mobilizing through social networks immediately after the event’s announcement and publicly expressing hate speech against Tbilisi Pride and calling for violence, including through television (“Alt-Info” TV channel).
According to the Law of Georgia on Assemblies and Demonstrations, the law enforcement authorities were obliged to take appropriate measures for the immediate termination of the assembly or demonstration before the situation became critical. However, despite the hate speech and public calls for violence at the counter-demonstration, law enforcement bodies did not take appropriate measures to stop the demonstration.
Violent actions also took place on July 6th, when citizens gathered near the Georgian Parliament building in support of LGBT+ human rights and journalists. This peaceful gathering once more became the target of a violent counter-demonstration, and the number of law enforcement agencies presented was still critically small.
Freedom from psychological and physical violence
Freedom from psychological and physical violence is a fundamental human right that must be protected for all individuals, regardless of their sexual orientation and gender identity. LGBTQI people in Georgia often face various kinds of discrimination, harassment, and violence because of society.
The study from 2020 by the Human Rights Education and Monitoring Center (EMC), shows that:
- 52% of the respondents have been victims of violence at least once in their life, fully or partly because of their sexual orientation and/or gender identity.
- Among the interviewed respondents, the experience of violence is highest among gay (65.5%) and transgender (61.8%) respondents.
- Experience of violence is high among respondents living in Tbilisi (57%), Adjara (53.3%), and Imereti (43.8%).
- Respondents were most often subjected to verbal abuse (91%) and psychological violence (81%).
- For one-third of the respondents, there were threats of physical violence (75%) and bullying (physical or online) (73%).
- Noteworthy, a stranger (40) and a person from the group of acquaintances (39) were most often named as the aggressors. Cases, where violence was committed by members of radical, neoconservative groups in the survey totaled 13. Respondents named a family member/guardian (10 cases) or a partner (9 cases) as the perpetrator with almost equal frequency.
In recent years, the policy against crimes committed based on sexual orientation and gender identity in Georgia has improved significantly. The state agencies took important steps to improve the quality of response to crimes, as well as to produce unified statistics between law enforcement agencies and courts, however, it should be noted that the state’s response to homo/transphobic crimes still does not meet the standards of efficiency, timeliness and impartiality. To date, the state has not created a unified strategy to combat hate crimes, which would ensure the detection of the negative social effect of such crimes, which may pose a significant threat to the establishment of the principle of pluralism and equality in society, as well as the creation of a democratic and safe environment.
Right of employment
Ensuring equal employment opportunities is crucial for the representatives of the LGBTQI community to live a fulfilling life and contribute to the socioeconomic structure of Georgia. Employment discrimination based on sexual orientation or gender identity can limit career prospects, reinforce economic inequality, and hinder personal growth. It is vital to implement strong legislation that prohibits discrimination in the workplace and protects LGBTQ people from unfair treatment.
A study conducted in 2018 (Aghdgomelashvili E., From Prejudice to Equality: LGBT People in Georgia) shows that 28.2% of lesbian and bisexual women were subjected to discrimination at the workplace due to their sexual orientation and gender expression, and in most cases, discrimination occurred when hiring – 21.4 %, while 11.2% and 6.5% were subjected to inequality of opportunities and discrimination in the promotion process. According to the research, lesbian and bisexual women who look gender non-conforming/non-binary face discrimination in the labor market more often. Overall, discriminatory experiences in the private sector (32.6%) are substantially higher than unequal treatment practices in the public sector.
According to the research conducted in 2020 (Jalaghania L. A Study on Social Exclusion of the LGBTQ group in Georgia), 93.1% of LGBTQ respondents agree with the opinion – “LGBTQ people, compared to others, have less access to employment”. That not only indicates the objectively existing discriminatory practices at the workplaces, but also shows the expectation of discrimination, which may create significant barriers for the job-seeker members of LGBTQI groups and they may still agree to a job with a more accepting environment, but without social benefits and adequate compensation. This is also confirmed by the distribution of the respondents of the study according to the employment sector, where the largest part comes from employment in the arts, entertainment, recreation (32.7%) and accommodation, catering services (19.20%) sectors.
In the study from 2020 by the Human Rights Education and Monitoring Center (EMC), we can read that:
- In the case of 60.5% of the respondents, the average salary of LGBTQ persons does not exceed 1000 GEL.
- More than a fifth of the employed respondents (22.3%) are employed in two jobs at the same time, the reason for which in the case of 9% of the respondents was the lack of salary.
- 5% of respondents indicate that they work full-time for an average of 47.4 hours per week. 20.9% of the respondents work with a free schedule, and their working time is 28.9 hours per week on average, less than a fifth of the respondents (18.6%) are employed part-time, which means an average workload of 25.1 hours per week.
- 2% of the respondents are employed without a contract, and half of the respondents (50%) work with a fixed-term contract. 16.8% is the share of those who are employed with a lifetime contract.
Recognition and protection of LGBTQI people’s rights in Georgia are necessary to create an inclusive, fair, and progressive society. By ensuring the right to expression and assembly, freedom from psychological and physical violence, and equal employment opportunities, Georgia can create an environment where all individuals, regardless of their sexual orientation and gender identity, can live authentically and without fear. In the article, only a small list of the problems are seen that Georgia faces today in terms of protecting the rights of the LGBTQI community.
The embassies issued a joint statement on the International Day against Homophobia, Biphobia, and Transphobia (IDAHOBIT).
According to the statement, LGBTQI+ persons continue to experience prejudice, discrimination, stigma, hostility, and violence daily and are prevented from living their lives in dignity as free and equal members of Georgian society.
“On the International Day against Homophobia, Biphobia and Transphobia (IDAHOBIT), we celebrate diversity and call for solidarity with the lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) community in Georgia. LGBTQI+ persons continue to experience prejudice, discrimination, stigma, hostility, and violence daily and are prevented from living their lives in dignity as free and equal members of Georgian society.
We welcome the increase in public support for the protection of minority rights in Georgia, as the number of Georgians stating that LGBTQI+ rights must be protected has doubled since 2015. We also welcome the protections against discrimination based on sexual orientation and gender identity and expression that Georgia’s landmark Law on the Elimination of All Forms of Discrimination continues to provide since 2014. We acknowledge the efforts of various state institutions and civil society organizations in ensuring the full protection of human rights and freedoms.
We are concerned that despite these efforts, progress has stalled. Newly adopted national policy documents, such as the National Human Rights Strategy 2022-2030, the State Concept of Georgia on Gender Equality and the national development strategy Vision 2030 do not include measures to strengthen protection and inclusion of LGBTQI+ persons. Stigmatization, discriminatory language, and hate speech by some public officials, politicians, media, and religious figures incite further harassment against LGBTQI+ persons and threaten their lives. Instigators and many perpetrators of open acts of violence against LGBTQI+ individuals in recent years, including during Pride Week in July 2021, have not been brought to justice, thus further limiting the opportunity for LGBTQI+ persons to exercise their right to peaceful assembly”, – says the statement.
The embassies call upon the Georgian state to ensure full enjoyment of the community’s rights.
According to the statement, “exclusion of any member of society perpetuates social, economic and political inequality and injustice for everyone, thus hampering further development of Georgia’s democracy. We call upon Georgian state, political, civic, and religious leaders to stand up and speak out against hate, discrimination, and violence and to work together with the LGBTQI+ communities to ensure the full enjoyment of everyone’s rights. We call on the Government of Georgia to align state policy and practice with Georgia’s international commitments to safeguard the rights of LGBTQI+ persons and to promote an inclusive society where everyone is safe and free to make decisions about their bodies and their lives. As Georgia’s international supporters, we stand ready to continue working alongside Georgian partners towards these goals”.
This joint statement is issued by the United Nations system in Georgia, the Delegation of the European Union to Georgia, the Embassies to Georgia of Austria, Belgium, Bulgaria, Canada, Czechia, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Israel, Italy, Latvia, Lithuania, the Netherlands, New Zealand, Norway, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, and the United States, the European Investment Bank’s Regional Representation for the South Caucasus, and the Head of the EU Monitoring Mission in Georgia.
European organization ILGA-Europe published the results of their assessment instrument Rainbow Europe for 2023.
Despite intense anti-LGBTI attacks in several countries, equality is still advancing across Europe.
While the public discourse around trans people is still polarized and violent, a number of countries have introduced legal gender recognition using a self-determination model. The strong support for queer people had benefits for the politicians as well. It’s more visible in the countries, which ban surgical procedures on intersex genital mutilation (IGM).
According to this year’s map, Spain moved from the 6th place to the 4th place, Finland entered the top ten, and Greece moved up by 4 positions. The definition of sexual orientation and gender identity as hate-motivated aggravating circumstances in anti-discrimination legislation has brought Belgium and Iceland to the level of Spain. Malta is at the forefront.
Noteworthy, Moldova moved up by 14 positions, as the country’s legislation banning discrimination in addition to hate crimes and language, crimes based on sexual orientation and gender identity were also extended to the areas of employment, education, trade, and services, as well as health.
Slovenia and Switzerland have legalized same-sex marriage and joint adoption. Switzerland has additionally allowed in vitro fertilization for queer couples. Croatia has also allowed adoption for queer couples.
Georgia still holds its 25% rating (in 2015 this number was 25%), which means that in terms of the full recognition and respect of the LGBTQI people’s rights at the legislative level, the country is behind by 75%. However, it is still ahead of a number of countries such as Turkey, Azerbaijan, Armenia, Russia, Belarus, Poland, Romania, Ukraine, and Latvia.
Of course, the existence of legislation does not necessarily mean its protection, and in this regard, the legal situation of the LGBTQI community in Georgia, according to the reports of the Public Defender and community organizations, is quite difficult. According to the results of the study from 2021, 7 out of 10 queers experienced physical violence at least once in the last 2 years, and 68.7% of respondents experienced psychological violence.
ILGA-Europe’s tool Rainbow Europe annually evaluates 49 European countries according to 74 criteria. More information can be found on the following link: www.rainbow-europe.org/about
ECHR found a violation on the case of legal gender recognition of trans men. According to the statement published by the European Court, it has been established that Article 8 of the Convention has been violated and there is no need to review Articles 3 and 14 of the Convention.
According to GYLA, the position of the Government of Georgia was not clear to the European Court of Human Rights, according to which gender reassignment should be evaluated by “biological, physiological and/or anatomical criteria”, in the light of the fact that there are no legal definitions for this. The court pointed out that the use of these terms requires great care and precision, as each of them leads to different legal consequences. The European Court explained that, for example, if sex change is to be assessed by biological criteria, then it will never be possible to legally recognize/change gender, because genetic sex cannot be changed medically.
“The court emphasized that Article 8 of the European Convention on Human Rights obliges the state to provide fast, transparent and accessible procedures, through which changing the registered gender marker will be possible,” GYLA said.
Nikolo Ghviniashvili, who is one of the 3 transgender men, applied to the European Court in 2019, while two of the upper mentioned men – in 2017. The rights of Nikolo Ghviniashvili are represented by the Association of Young Lawyers of Georgia in cooperation with EHRAC, Women’s Initiatives Support Group (WISG) together with the European Human Rights Center (EHRAC) are representing A.D. and A.K.
According to GYLA, the court did not explain in detail what a fast, easy and accessible procedure should be, although it is explained in the policy document prepared by WISG, taking into account international standards, according to which:
“Expedited mechanism refers to a procedure that ensures the shortest possible interval from the filing of the application to the change of the record. The mechanism will be considered transparent if the law clearly regulates the procedure for changing the record of name and gender, including which agency interested persons should apply for. Accessibility of the procedure focuses on a more practical aspect and implies the elimination of barriers that may be related to a person’s health, age, limited ability. The issue of accessibility also refers to financial accessibility, which may not become a barrier for a trans person.”
According to GYLA, the European Court says: “the main problem in the present case is that it is completely unclear what the legal regime of sex/gender marker change is actually in Georgia. “At the same time, the court emphasized that the main problem is the unanswered question from the state and national courts: what are the necessary medical procedures for the legal recognition of gender.
The organization also says that the position of the Georgian government was not clear to the European Court of Human Rights, according to which sex change should be evaluated by “biological, physiological and/or anatomical criteria”, in the light of the fact that there are no legal definitions for this. The court pointed out that the use of these terms requires great care and precision, as each of them leads to different legal consequences.
Based on all of the above, the court concluded that “the absence of clear legal grounds leaves the decision-making bodies with wide discretionary powers, which creates the danger of arbitrary decisions when considering applications for legal recognition of gender”.
The Court unanimously found that the respondent State was obliged to pay the following amounts to the applicants as compensation within 3 months of the judgment’s entry into force: 2,000 EUR to all three applicants, plus any fees that may be charged, in terms of moral damages, and 9,812 EUR to the third applicant, in addition any charges which may be imposed, in terms of costs;
According to the lawsuit, despite the absence of relevant legal regulations, the state authorities consider performing a surgical operation as a prerequisite for changing the gender record, which violates the right of the applicant to respect for private life (Article 8 of the Convention) and prohibition of inhuman treatment (Article 3 of the Convention). Furthermore, such treatment puts transgender people in an unequal position with respect to other groups contrary to the requirements of Article 14 of the Convention.
As for another lawsuit at the Strasbourg court, which involved the banning of LGBTQI symbols in stadiums, the European Court said that the decision of the prosecution authorities not to open a criminal investigation in the case should have indicated to the plaintiffs that they should have applied to a civil law authority, which would be more suitable for consideration and satisfaction of their claims.