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SCOTLAND: Legal challenge over definition of ‘woman’ gets under way

A legal challenge over the definition of the word “woman” has begun at the Court of Session in Edinburgh.

 

By Kirsty McIntosh

The Courier (07.01.2021) – https://bit.ly/2JS3dme – Campaign group For Women Scotland is challenging the Scottish Government over the wording of the Gender Representation on Public Boards Act 2018.

 

The legislation, which was passed two years ago, aims to increase the number of women in senior positions on public bodies.

 

Its wording covers trans women who hold a gender recognition certificate, which changes their legal gender from male to female, as well as those who are “living as a woman” and are “proposing to undergo” such a change “for the purpose of becoming female”.

 

Virtual hearing

 

However, For Women Scotland say that definition clashes with the UK Government’s Equality Act 2010, which defines a woman as a female of any age.

 

For Women Scotland’s website says the group’s aim is “To stop the Scottish Government redefining ‘woman’ to include men”.

 

They believe the Scottish Government has acted outwith its powers, as the matter is reserved to Westminster, and believe MSPs are breaching their responsibilities to equality legislation.

 

The group was granted a judicial review, to be heard by Lady Wise.

 

The matter is being heard in a virtual hearing at the Court of Session today and tomorrow.

 

The hearing will also receive submissions from human rights lawyers Just Right Scotland on behalf of Scottish Trans, which is part of LGBT organisation Equality Network.

 

The submission includes a 5,000 word document detailing the experience of transwomen living in Scotland.

 

The Equality network believes that if the challenge is successful it will discriminate against transwomen.

 

Previous controversy

 

It comes just weeks after the Scottish Parliament debated an amendment to the Forensic Medical Services Bill.

 

The Bill aims to improve services for those who have experienced rape or sexual assault by allowing access to a forensic medical examination without the need to report to the police.

 

Johann Lamont tabled an amendment of just six words – “for the word ‘gender’ substitute ‘sex’” –  after stating that the original wording “could be ambiguous in the bill, which has the potential to cause distress to individuals undergoing forensic medical examination”.

 

The change allows rape survivors to request that an examination be carried out by an individual of the same sex.

 

The Scottish Government initially rejected this argument, but ministers backed the amendment on Thursday.

 

The change in wording was backed by 113 MSPs.

 

The issue led Scottish Greens MSP Andy Wightman to quit the party after disagreeing with their stance on the issue.

 

All members of the Scottish Green Party, as well as the Lib Dems, voted against the amendment.

 

For Women Scotland has a list of the group’s beliefs on its website, including that “sex is immutable and is a protected characteristic”.

 

They also believe that “women are entitled to privacy, dignity, safety and fairness”.

 

And “women’s rights should be strengthened”.

 

Members say they “campaign on a positive, pro-women basis and we call for evidence-based discussion and legislation”.





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UK’s top court rejects trans man’s bid to be named child’s father

Trans man Freddy McConnell’s bid to be named the father rather than the mother on his child’s birth certificate was rejected by Britain’s Supreme Court.

 

By Rachel Savage

 

Thomson Reuters Foundation (16.11.2020) – https://bit.ly/3nuPuQv – A British transgender man’s bid to be named the father rather than the mother on his child’s birth certificate has been rejected by the country’s highest court, in a case that has highlighted evolving conceptions of gender.

 

Freddy McConnell transitioned aged 22 and official documents, such as his passport and health records, have been changed to show his sex as male.

 

Britain’s Supreme Court declined to hear an appeal against a ruling by a lower court that said existing law balanced trans rights with the view “that every child should have a mother and should be able to discover who their mother was”.

 

The challenge did not “raise an arguable point of law”, it said on its website on Monday.

 

McConnell and his lawyers did not reply to requests for comment.

 

McConnell, a journalist, stopped taking testosterone in 2016 and became pregnant through fertility treatment using donor sperm.

 

His journey to parenthood was shown in a documentary, “Seahorse”, and he is currently sharing his efforts to become pregnant again via IVF on Instagram.

 

“This could’ve been a really pivotal moment for trans parents such as Freddy,” said Cara English of trans advocacy group Gendered Intelligence.

 

“We hope that in the near future the loophole that forces men such as Freddy to be incorrectly referred to as “mothers” can be legally righted.”

 

In April McConnell told the Thomson Reuters Foundation he had accepted his legal fight would be “a long road” and that appealing to the European Court of Human Rights was a possibility.

 

“I don’t really think it’s about the fact that I gave birth,” he said. “Ultimately, it’s about the fact that trans people have never been taken into account.”

 





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Belgium to introduce ‘X’ as third, non-binary gender

By Gabriela Galindo

 

The Brussels Times (09.11.2020) – https://bit.ly/36wunXk – Belgium’s new government will introduce gender-neutrality throughout its term and make it possible for non-binary citizens to use the gender identifier “X.”

 

Federal Justice Minister Vincent Van Quickenborne said gender inclusion and self-determination will be one of the policies he will work on throughout his tenure, according to a general policy note released last week.

 

Van Quickenborne’s note follows a Constitutional Court ruling last year which said Belgium’s law on transgender people should be made more inclusive, the Belga news agency reports.

 

The court found that the law, which was passed in 2017 to allow people to modify the gender assigned to them at birth, needlessly maintained binary masculine and feminine genders, making it restrictive and discriminatory.

 

It therefore ruled that the law must take into account a person’s right to self-determination.

 

The justice minister said that his cabinet would push modifications of the law in parliament to “make [the law] on gender registration conform with the court’s decision.”

 

Van Quickenborne said the changes in question were “an ethically sensible issue” and said he hoped the debate could take place “in an open and flexible way” in parliament, where it would face lawmakers from the conservative fringes, such as the N-VA and the Vlaams Belang (VB) as well as his party’s coalition partner, the Flemish CD&V.

 

The move to do away with binary gender norms comes at a crucial time for LGBTQ rights across the globe, as some countries uphold and pursue diverse agendas while others seek to suspend or restrict civil rights and liberties.

 

While countries like Sweden and China beat Belgium to the punch in terms of inclusive gender legislation by decades —with both countries having passed their first transgender laws in the 70s— Belgium is a trailblazer in terms of political representation.

 

In 2011, Belgium became the first country in modern history to be led by an openly gay man, Elio Di Rupo, who is now the Walloon region’s minister-president.

 

The country broke new ground again this year with the appointment as Deputy Prime Minister of Petra De Sutter, who is now the highest-ranking transgender politician in Europe.

Photo: People hold a banner reading ‘My gender is non-binary’ in the 2016 edition of Paris’ Gay Pride March. Credit: Vassil/Wikimedia Commons (CC0).





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KOSOVO: Landmark decision for transgender rights

Blert Morina exercises right to change name and sex marker.

 

By Dafina Halili

 

Kosovo 2.0 (20.01.2020) – https://bit.ly/2tZU0jI – When Blert Morina next crosses the border, he will have new documents and a victory against the state in his pocket.

 

In December, the Basic Court of Prishtina affirmed his right to change both his name and sex marker in his identification documents, marking a landmark decision for Blert himself, transgender persons and the whole LGBT movement in Kosovo.

 

With the decision in his hands, on Monday (January 20) he went to the Municipality of Gjakova to officially request new documents. It marks a return to the institution that denied his request to change his name from “Blerta” to “Blert” and his sex marker from F (Female) to M (Male), thereby pushing Blert into almost two years of court battles.

 

The court’s decision states that the decisions by the Directorate for General Administrative Work within the Municipality of Gjakova, based on a recommendation by the Kosovo Civil Registration Agency (ARC), are “annulled as unlawful” and obliges the relevant institutions to officially correct Blert’s name and sex marker within 15 days of receiving the court’s decision.

 

The case is the second such case in which Kosovo’s courts have ruled in favor of protecting the rights of transgender people in this way. In 2018, the Court of Appeals upheld a decision by the Basic Court of Prishtina, which had affirmed the right of an annonymous applicant to change their name and sex marker in line with their gender identity.

 

Blert is exhilarated that this chapter of his life is coming to an end.

 

“There were moments when it became too much to balance the work, transition, all the pressure from society, and then the media,” he says. “I reached the point of thinking that I wasn’t saying anything new. Like I was only repeating things and I’d get bored of myself.”

 

Blert was assigned a female biological sex at birth, but self-identifies as a man in all spheres of life, from his family and social circles to his work. He would particularly be reminded of the mismatch of documents with his gender identity any time he crossed a border, where he would have to endure thorough investigation:

 

“When [lawyer] Rina [Kika] told me [of the court’s decision] I was so happy, especially because I would hesitate to travel just to avoid the border thing.”

 

He submitted the request to change his name and sex marker to the Office of Civil Registry in his hometown of Gjakova in April 2018. One month later, when he was informed by the Directorate for General Administrative Work within Gjakova’s Office of Civil Registry that his request had been denied, he immediately made his case public through the media.

 

The spotlight he has received in his fight against the state has often made him feel that his case has distracted attention from the role he has at the Center for Equality and Liberty (CEL), the LGBT rights organization where he is the executive director.

 

“The decision is also important because now I won’t be called by the media to talk about my case anymore and so I don’t inadvertently do an injustice to all of the other work of CEL,” he says.

 

But it is his loved ones that have been supporting him and the significance for other transgender persons that make the court’s decision even more important to Blert.

 

“I am so happy that finally my family are going to be relieved of the pressure they have had in recent years,” he says. “And most important of all is that other people with the same request as me will not go through this.”

 

Blert’s lawyer, Rina Kika, says that the whole court case represents the complicated dynamic between progressive legislation and its implementation in Kosovo.

 

“I think that Blert’s case contradicts the idea that we have good laws that are not implemented,” she says. “So, with this case you simultaneously have laws and also their implementation. But in parallel, you also have the resistance of institutions to implement the law, which is seen with ARC refusing the request to change the name and sex marker, by saying that the request is not reasonable and thereby hampering Blert’s integration in society.”

 

One part of the lawsuit that the court refused was the request to compensate non-material damages such as the anxiety and stress caused as a result of violations to Blert’s rights to private life, equal treatment and human dignity.

 

Kika explains how people whose human rights are violated should be entitled to compensation. She says that by upholding the right for Blert to change his name and sex marker the court in Prishtina acknowledged that there had been a violation of the right to privacy, but by not ruling in favor of the right to compensation they failed to recognize the right to be free from discrimination and the right to human dignity.

 

She adds that despite their frustrations at this element of the decision, they decided not to appeal because it would mean more court hearings, which could take many more than a year, meaning more stress for Blert who wouldn’t be entitled to new documents until the new decision was delivered.

 

“I think it is an unfair decision from the court to not give compensation for non-material damages,” she says. “Still, the decision addresses important and essential issues in recognizing gender identity. It is a victory with a small fault.”

 

Two years in legal limbo

Back in 2018 when Blert submitted his application to formally change his name and sex marker on his official identity documents, his application referred to the Administrative Instruction on the Conditions and Procedures for Personal Name Change and Correction; specifically the provision that states: “Personal name hinders person’s integration into society.”

 

However, the official decision by the Municipality of Gjakova, quoting a recommendation by ARC’s Commission, stated that the application didn’t meet the conditions of the Administrative Instruction “as ‘Blerta’ doesn’t hinder the person’s integration into society.”

 

He appealed the decision directly to the Agency, but Blert’s appeal was rejected and described as “without basis,” stating that he “didn’t give any evidence, document, note or photography, or archive document that shows that Blerta Morina’s personal name hinders the person’s integration into society.”

 

The ARC again requested additional evidence in the form of a medical report or decision in order for Blert to change his sex marker.

 

At the time, Kika described ARC’s decision and justification as “discriminatory” as it excluded Blert based on his gender identity while violating his right to be treated equally and with privacy. She particularly highlighted that the Law on Protection From Discrimination and Law on Gender Equality recognize gender identity as not being tied to a person’s assigned sex at birth or requiring medical intervention.

 

A few months later, in July 2018, he and Kika, took the case to the Basic Court of Prishtina and also simultaneously filed a complaint against the ARC at the Constitutional Court, asking for a constitutional review of the decision to reject his appeal. It was a step taken with the support of the Ombudsperson.

 

Kika’s decision to take the complaint to the Constitutional Court before exhausting other available legal measures was triggered by the tendency for long delays in cases at the Basic Court; cases can take many years to deliver a decision, which she argued would violate Blert’s right to have the case resolved in a reasonable amount of time and thereby add to his suffering.

 

In September last year the Constitutional Court dismissed the request to review the constitutionality of the decision, stating that the request was “premature,” and passed it back to the Basic Court.

 

But to the surprise of Blert and his lawyer, that same day the Basic Court of Prishtina called them and in October they had two hearing sessions. Within the courtroom it was just them and the judge — nobody from ARC’s side participated.

 

“The judge [Lirije Maksutaj] during the sessions told us that she is aware of the case’s urgency and that is why she decided to take the case in her hands out of turn and that she was in correspondence with the Constitutional Court who dismissed the case but commented on the right to privacy and recognition of gender identity,” Kika says. “We sent six emergency letters to the court.”

 

Publicly leading the way

While Blert was going from institution to institution and court to court the publicity made transgender and LGBT issues a frequent topic in the media. Blert says that this contributed to shedding more light on the overlooked LGBT community and movement in the country.

“Just the fact that there were constant discussions about trangender people in the media helped the whole movement because you cannot talk about transgender people without including the whole community,” he says.

 

“I think what we lacked [previously] was more public discussion. There were times when we would talk about IDAHO [International Day Against Homophobia, Transphobia and Biphobia] and Pride parades but rarely would we have a discussion about the movement independent from these two events. This also contributed to better informing people about LGBT people.”

 

Blert and his legal representative had discussed their strategy for how to go about the case months before they even submitted the request at the municipality and had taken the firm decision to make every step public.

 

“I repeatedly told Blert that ‘your request will get rejected in the first instance, in the second one, and maybe you’ll have to wait for years,’” Kika reflects on the first conversations with Blert a few years ago. “We were expecting the potential outcome from the beginning and made the plan. We had meetings with the Ombudsperson, media representatives, aware of the importance of us informing [the public] about the case.”

 

She highlights that Blert’s persistence and courage to not stay anonymous not only gave visibility to the plight of trangender people but that he has also portrayed “a great example of how to promote human rights and LGBT rights.”

 

“Now it is more difficult to refuse new requests for trangender people,” she says. “And the most important thing is that for the first time the court has decided to recognize the right to gender identity without offering evidence for surgical intervention or any medical change.”

 

In fact Blert, who started hormonal therapy exactly two years ago as part of his planned transition, has never had more male features than he does now. With a deeper voice, noticeable beard and hairy hands, and visibly much more relaxed, he smiles at the idea of soon getting his new documents.

 

And, if by any slight chance ARC doesn’t implement the court’s decision, he says he is ready to file a criminal complaint.


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