On 27 June 2013, the National Advisory Commission on Human Rights (CNCDH) published its opinion on the incorporation into national law of the concept of gender identity and the simplification of the gender the civil state. It includes proposals for significant improvements for the persons concerned, in particular by dissociating the question of the change of sex in civil status from the medical question.
This may be one of the main incidents of the law of 17 May 2013 opening up marriage to same-sex couples (see ADL, 28 January 2011): equal recognition of heterosexual and homosexual unions Make it possible to displace concerns by making the situation of trans-identity persons visible. Left to the jurisprudence for almost sixty years (the first published decision dating from 1965), the issue has recently been the subject of several initiatives. Three reports have recently examined it both in its medical aspects (the report of the High Authority for Health in November 2009, Current situation and prospects for the development of medical care for transsexualism in France and the General Inspectorate of Health Social Affairs in December 2011, Assessment of medical and social conditions for trans people and transsexualism) and civil (Senate, Note on the modification of the mention of sex in civil status, May 2012).
All of them then observed the inequality of treatment between the citizens with regard to health insurance (Report HAS, supra, pp. 75-76, IGAS Report, p 43) and denounced the legal uncertainty induced By the wide variety of interpretation, at the discretion of the courts, of the criteria laid down by the Court of Cassation in civil matters (Report HAS, supra, at 45, IGAS Report, pp. 8, 12 and 48; , Cited in footnote 6, which noted the “fluctuating nature” of the case-law). In its opinion of 27 June 2013, the CNCDH does not make another finding (§§ 15, 17, 22) and invites the legislator to intervene both to unify and clarify the requirements and to simplify the procedures. The Commission thus invites the legislator to intervene on two aspects: first, by integrating the concept of gender identity into internal law, which is not without its difficulties (1), then dissociating the logics Legal and medical procedures and partially diverting the procedure in order to facilitate the amendment of the reference to sex in the civil register (2 °).
1 ° / – The integration of the notion of gender identity into internal law
The CNCDH advocates the integration of the notion of gender identity in domestic law (§5-14) and justifies it by two principal arguments, on the one hand because it would legally impose itself (§9) On the other hand to ensure more adequate protection for trans-identity persons (§12 and note 7, page 4). The Commission therefore makes this introduction the means by which the legal standard would make it possible to seize all the discrimination linked to gender by distinguishing the gender identity from that of sexual orientation. To avoid the confusion that seems to be frequent with sexual orientation (§11), it would be to favor the notion of gender identity to that of sexual identity introduced by the law of 6 August 2012. In addition, it would make it possible to protect transdental persons in their diversity (which is the terminology chosen, see footnote 1 in the opinion). The suggested way of achieving the objective is not without raising many questions. The definition of gender identity in the texts cited in the opinion includes a civil aspect linking the recognition of the concept to the civil status even though the two questions are distinguished in the drafting of the opinion. The definition is unambiguous in the Hammarberg report and the Jogjakarta principles, and it is this that should be incorporated into French law, which clearly amounts to conferring a normative dimension on the meaning retained by these texts. It is then doubtful to claim that its introduction into the legislative arsenal “does not in any way commit itself to taking sides on the orientations and exchanges of researchers in the social sciences related to gender studies, which are themselves plural” (§ 13) . The opinion seems to us, on the contrary, to settle these questions in a sense, as the above-mentioned writings had done.
The Hammarberg Report states that “while the notion of sex essentially refers to the biological difference between women and men, gender refers to the social aspects of gender difference, but is not limited to the biological element. The notion of gender identity makes it possible to understand that the sex with which a child is born may not correspond to the innate gender identity that it will cultivate as it grows. It is the intimate and deep personal experience that every person of his kind, whether or not it corresponds to his birth sex, including the personal consciousness of the body and the various forms of gender expression, Clothing, speech and manners “(Thomas Hammarberg, Human Rights and Gender Identity, Oct. 2009, 6). By gender identity, the Hammarberg report thus understands both gender and subjective experiences, cultural constructs, and so on. Associated with it. On this foundation, he intends to integrate the gender identity in law in order to facilitate changes of “gender” according to his terms, in the civil register (pp. 15-16).
The Jogjakarta principles, in the same sense, set out a definition cited in the Opinion (§ 6) according to which “gender identity is understood as referring 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 medical, surgical or other means) and Other forms of expression, including dress, discourse and ways of behaving “(Principles on the Application of International Human Rights Law on Sexual Orientation and Gender Identity, known as Principles of Jogjakarta, March 2007, note 2 p.6).
The definition quoted in the opinion is that of the introduction to the Principles (referred to in the note and not the official French translation of the Principles), which on page 8 refer to “the intimate and personal experience of one’s sex” and To “expressions of sex, including dress, discourse and ways of behaving”, we emphasize). The definition given by Hammarberg and the Jogjakarta experts (or the translation of the Jogjakarta principles retained in the Opinion) make gender the cultural or social dimension of sex considered as a biological data. This is also reflected in the Council of Europe Convention on Preventing Violence against Women and Domestic Violence, signed by France on 11 May 2011 but not ratified to date, and not Cited by the Opinion of the CNCDH: “The term” gender “refers to socially constructed roles, behaviors, activities and attributes that a given society considers appropriate for women and men” (Article 3. C, idem article 14). Such an understanding of the notion is not without its difficulties, both in the theoretical field and in the legal field.
In the first place, it amounts to taking sides with a definition of gender that equates it with “social sex” which was very early denounced in feminist writings insofar as it tends to make sex as a constructed category unthinkable (see on this point by Christine Delphy, The Primary Enemy 2. Thinking about gender, Syllepse, 2001, p.253, Laure Bereni, Sébastien Chauvin, Alexandre Jaunait, Anne Revillard, Introduction to the Gender Studies, De Boeck, Elsa Dorlin, Gender, Gender and Sexuality, PUF, Paris, 2008, p.40 and the references in these works, see also for the jurists Marie-Xaviere Catto, Juliette Gaté, Charlotte Girard, Stéphanie Hennette-Vauchez, Carolina Vergel-Tovar, “Questions of epistemology: studies on gender in legal terrain”, in REGINE, What gender does to the law, Dalloz, to be published in 2013) . Terminology has historically evolved and many authors now make it the hierarchical divisor (which makes the hierarchical difference in the social roles of sex, the sexes, the feelings of belonging to it), not one of the products of the Division (which would lead to naturalization of the sex category).
Secondly, the Jogjakarta and Hammarberg proposals deal with the concept of civil status and presuppose that sex is exclusively constituted by its biological dimension, which is not the case. The sex referred to in Article 57 of the Civil Code itself includes psychological and social elements, recognized by the case-law as such, both for intersexes (the judgment of the Court of Appeal of Versailles of 22 June 2000 incorporates As a criterion for the “breeding sex” of the child), as for the trans (since all the jurisprudence refers to the social behavior of the person wishing to change his civil status and to the profound conviction that the person of his Own sexual identity). The sex of civil status, therefore, is not reduced to biological sex. It is possible to add that in international law it can not be summarized. In Goodwin, the European Court of Human Rights includes factors other than biological elements in the legal recognition of a change of sex (ECtHR, 11 July 2002, Christine Goodwin v. The United Kingdom, Req. No. 28957/95, §100), in the Van Kück judgment, the Court made it “the applicant’s freedom to define one’s sex … one of the most essential elements of the right to self-determination “(ECtHR, 12 June 2003, Van Kück v. Germany, Application No. 35968/97, § 73). There was no need to integrate the notion of gender identity into law to assert it. It is thus to a reinterpretation of the notion of gender, which is already plural, that the integration of the notion of gender identity risks to proceed, taking full part, imposing a univocal and disputed meaning, within the debate Which drives the scientific community.
This notion should be incorporated not because it would be politically expedient but because it would be legally binding: “the introduction of the criterion of” gender identity “into legislation would bring French law into conformity with the law European and international law “(Opinion, § 10). It is possible to doubt this. First, because all the texts cited have no binding force (neither the Jogjakarta principles, nor the Hammarberg report, nor the Council of Europe recommendations which use the expression). As for the case-law of the Court, the reference to this concept has only recently occurred and only in the context of the citation of Committee of Ministers Recommendation CM / Rec (2010) 5 (see ECtHR, GC 19 February 2013, X. et al v. Austria, Appl. No. 19010/07 – ADL of 26 February 2013, ECHR Court, 1st Section, 21 October 2010, Alekseyev v. 22 October 2010, ECHR Court, 5th Sect, 15 March 2012, Gas and Dubois v. France, Rec.No. 25951/07 – ADL of 16 March 2012, ECtHR, Dec. 5th Sect. France, Req. 66686/09). This has not materially changed anything, as the Recommendation considers gender and gender equivalents as its Annex, § 21 states: “Member States should take appropriate measures to ensure full legal recognition of gender Person in all areas of life, in particular by allowing the name and gender of the person concerned to be changed in official documents in a rapid, transparent and accessible manner “(emphasis added).
Second, it is clear that the European directives refer to this concept. Gender appears to be a quality of the person: the “gender of the applicant” would include both the subjective feeling of identity and sexual orientation (Directive 2011/95 / EU, 30th recital, Also appears in Articles 9 (2) and 10 (1) (d). It also appears as a ground of discrimination (gender alongside sex Directive 2012/29 / EU, 9th recital) or violence (‘gender-based violence’, Articles 9.3b, 22.3, 23.2d, 26.2 The directive combining gender-based violence, gender identity and expression, or violence “disproportionately affecting persons of one sex”, 17th recital). “Expression or gender identity” also appears (9th and 56th recitals), the terms being reproduced in the articles. It is nevertheless possible to recall that the reference to the concept in a Community directive can not impose on the Member States to adopt it: it imposes on them only an obligation of result, each State having a certain autonomy in this area. If transposition is to ensure full application of Union law, it seems possible to substitute its definition for the term. The only currently accepted definition of “gender identity”, to which the guidelines also seem to refer, is the one cited earlier and no concurrent definition is likely to restrict the meaning or scope of the text. The elements referred to by the expression “gender identity” as “the subjective feeling of one’s own identity and modes of expression”, in that they are shaped by gender, could thus substitute. It is therefore necessary to protect, materially, the subjective feeling that each has of his own identity, “the” gender identity “refers only to an intimate perception and experience of self disconnected from physiological determinations” Of the CNCDH, §13). That is what must be protected, but Community law does not require the use of the expression that the CNCDH proposes to integrate. Moreover, it would be possible to introduce the concept in its criminal aspect but not insofar as it relates to civil status. This is what the CNCDH seems to propose, but this is not limited to the texts defining the concept cited in the opinion.
Only the criminal aspect is at present concerned by the recommendation to replace the notion of “sexual identity” with “gender identity” in “Article 225-1 of the Criminal Code, as all the provisions in which they have Been introduced “(§ 11). It is also within this framework, that of combating discrimination, that the recommendations of the IGAS report were limited (Report IGAS, supra, page 8 and in its recommendations, No. 31, p. Finally, and in this respect, the Council of Europe Convention on preventing violence against women and domestic violence refers to discrimination based on “gender, gender , Race […] sexual orientation, gender identity “(Article 4 (3)). It would therefore be possible, without however wishing to recognize it in civil matters, to integrate this concept in the context of the fight against discrimination (and in the grounds of persecution under the 2011 Directive or the Council of Europe Convention). (Art. 60), this framework knowing its own notions (race, color, ethnic or social origin, etc.). In this sense, it would be possible, even if the above-mentioned texts do not make it clear, to distinguish gender as a ‘gender identity’ perspective (as the CNCDH seemed to insist in the opinion adopted on 22 March 2012 on The gender perspective, §25). To make it an autonomous notion whose meaning would be specific to the right of non-discrimination would be all the more relevant since the plurality of modes of expression of its identity, which must be protected, do not correspond to the binary logic of (See the definition of transnationality adopted by the CNCDH, including those who refuse to identify themselves in the framework of sexual bi-category).
If sex is at present, in criminal law, understood as exclusively that of civil status itself perceived as a biological data – and thus penalizes discrimination between men and women – it would then be Because of the principle of strict interpretation of the penal norm, to introduce non-discrimination “on grounds of sex or sexual characteristics (biological, social, psychological)”. The forms of arrangement of his subjective experience of gender-shaped norms are infinitely more diverse than the duality of the sexes of civil status, and if all are to be protected, there is no necessary correspondence between the requirement Protection for this reason in the context of the fight against discrimination and the civil aspiration to be recognized in the other sex. Nevertheless, it would also be possible to refer to the subjective feeling of one’s own identity and modes of expression without introducing the notion. It seems difficult to think of gender as a hierarchical divisor while making gender the subjective feeling of its identity, ie one of the products of division, without introducing the greatest confusion.
The Convention of the Council of Europe in 2011 testifies to this, since gender is both a quality of the individual and his sex (Article 4), but also a perspective or grid of analysis within the framework of “policies Gender-sensitive “(Article 6). This is also the case in Directive 2012/29 / EU, where gender is a quality of persons or identity (see above) and a perspective (a problem of violence becoming a gender issue when a gender is much more affected That is to say, whatever the sex, the social role or the subjective feeling of the victim) or a dimension of the training of the agents (cons 60). The CNCDH itself, in the aforementioned opinion of 22 March 2012, recognized the plurality of meanings, making gender both an encompassing concept, a grid of analysis of power relations (§1, § 18) and l Equivalent to “social roles of sex” (§ 25). While the CNCDH emphasizes the need to respond to the discriminations against trans-identity victims and tries to respond to this protection requirement, the response can be discussed. The opinion convinces more by proposing to reform, to facilitate the procedure, the change of sex to the civil status.
2 ° / – Facilitate the change of sex to civil status
The opinion of the CNCDH observes that abandoning the question of sex change to case law leads to complete legal uncertainty (§15, 17, 22), to “dead ends” (§30) and that the criteria By the judges to admit it impose either a sterilizing hormonal treatment or surgical operations, which leads people who do not always want to undergo extremely heavy operations to achieve a sex change on their papers (§ 22) and decides to take the complete opposite of it by completely dissociating legal and medical procedures. This is the essential element of the opinion, which follows on this point the proposed law aimed at simplifying the procedure for changing the mention of sex in the civil register filed by Michèle Delaunay in 2011 and currently resumed By the senators Maryvonne Blondin and Michèle Meunier: “The CNCDH asks that any request for sexual reassignment be stopped, whether it involves a hormonal treatment resulting in sterility or that it means the use of surgical operations” § 22).
The last part of the notice is intended to facilitate the procedural change of sex. The CNCDH has envisaged three channels for this purpose: summary proceedings, total diversion of proceedings or partial diversion (§§ 24-30). While the interlocutory procedure is discarded because of its complexity, as its exposition suggests, the total diversion proposal seemed quite viable. Like the Argentine law, article 2 of which takes up the definition of the gender identity of the Jogjakarta experts (on the Argentine law, see Daniel Borillo, “Gender identity and law: between public order and Privacy, “Hearing before the CNCDH, March 19, 2013), the proceedings would have been summarized by a simple statement to the registrar. This proposition is excluded because “the mention of sex remains, in our law, an essential element of the identification of persons” (§27, idem §2). It is, however, difficult to agree. For the present right, sex is not intended to identify people, otherwise it would have been necessary from the outset to allow sex to change on the basis of physical appearance alone and not to require sexual reassignment. One is rather little identified in the public space on the basis of the exhibition of the genitals which must precisely remain hidden.
In addition, making sterility the condition of change sufficiently demonstrates that the problem is not identification, as the view is quite unfit to inform whether or not a hysterectomy has occurred. On this point, the opinion contradicts itself clearly: it is indeed “insofar as their appearance does not correspond to the sex indicated on their papers” (§ 17) that transdental persons are victims of repeated discrimination and it is therefore Paradoxical to affirm that “the state of persons […] allows a simple and sure identification of others” (§ 28). In this context, the dual assertion that sex is essential for the identification of persons is normative and not descriptive: it is intended to affirm that sex must be an essential element in the state of persons at the time when perpetrators (Patrice Maniglier, “Much more than five sexes: beyond masculinity and femininity”, in Jean Birnbaum (ed.), Women and Men Benjamin Moron-Puech, intersexuals and law, memory of Master II, 2010, p. , Daniel Borillo, “Sex and Law: The Binary Logic of Gender and the Heterosexual Matrix of the Law”, in Jurisprudence, Revue critique, 2011, 273).
The opinion therefore advocates the third solution which, although it does not completely divert the procedure, nevertheless improves it considerably. Transdisciplinary persons would initially make a declaration before the registrar, with two witnesses, and then “this first step should then be checked and validated by a judge at the headquarters through a probate procedure” (§ 29). The grounds for refusal would be limited to the “manifestly fraudulent” nature of the application and the “lack of discernment” of the applicant. The judge seems therefore to validate the applicant’s approach by finding that, as the opinion states, the individual does not change his sex by taking an “arbitrary, conjunctural or phantasmatic decision” (§19), an approach attested By both witnesses, but could act as an obstacle if it found a “lack of discernment”. The character “manifestly fraudulent” should also be specified. It can not in any case lead to reintroducing the requirement of body conformation to the claimed sex in so far as the medical question has been radically disconnected from the question of the change of sex in civil status.
CNCDH, 27 June 2013, Opinion on gender identity and the change in the reference to sex in civil status.
To cite this document:
Marie-Xaviere Catto, “CNCDH Opinion on Gender Identity and Change in Sex Reported to Civil Status” [PDF] in CREDOF News letter, 11 July 2013
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