Gender Equality - for all people

Just a reminder that this blog is just capturing unorganised random thoughts. It is not research, nor is it complete. I like to have somewhere to capture these random thoughts. They could be wrong, but it is only through setting them down that I will establish that.

I am concerned about equality. Gender equality is my main concern, although I am concerned that discrimination in all it's guises is eliminated. I came across this statement from the European Commissioner for Human Rights, Thomas Hammarberg. I became confused about certain statements he made. Further, it crossed over certain beliefs I have about the problems of gender and legislation to prevent gender discrimination. I believe that the abolition of gender is necessary to bring equality. This does not mean getting rid of men and women – they are defined by their phenotype. What it means is getting rid of the socially constructed gender roles, enabling freedom for people to do what they want and to express who they truly are.

But more than that, I keep coming across a phrase I feel like a woman and the one in this article Most people legally defined as man or woman will experience a corresponding gender identity. These are phrases that I simply do not associate with. I was born female, and yet I cannot say that I feel female or experience a female gender identity. What I do experience is a societal expectation of how I should behave because I am classified as female.

My random thoughts are in normal typeface and are interspersed with the Thomas Hammarberg statement which is in italics:
The rights of transgender persons are still ignored or violated, but some signs of understanding now begin to appear. One example is the outcome, at long last, of Lydia Foy’s struggle in Ireland. She was registered as male at birth but has lived as a woman since 1992. This summer she finally succeeded in her battle for legal recognition by the Irish state as a woman and for a birth certificate that reflects this reality.

There is no question that the rights of many minority groups are still being ignored and violated. The question is whether or not altering the birth registration is necessary for providing equality or recognition of a person’s rights. A major failure of all equality legislation is that it is, in itself, discriminatory. It defines people into various groups and then says that they should not be discriminated against. In fact, the legislation should start from the position that all people are equal. If gender equality legislation was written in terms of people are equal regardless of gender, then would this situation have arisen?

Most people legally defined as man or woman will experience a corresponding gender identity. I struggle tremendously with this sentence. I have had to separate it from the rest of the paragraph because the issues raised here are so very complex. I have had such problems with this that I have been unable to get past this sentence. In many ways, this goes to the heart of the problem. I do not understand what is meant when he says that people “will experience a corresponding gender identity”. I am not sure that I ever experience a gender identity. I do not grasp what this gender identity is. I experience life as a person. I choose how I present to the world and I choose how I behave in that world, but I cannot say that I experience a gender identity. So I asked a number of other people to tell me about their own experience of gender identity. At first, I received some comments about gender identity being an internal belief in your own gender, but I explained that I did not want a definition but their experiences of being women and men who had no conflict with their gender identity. The silence swirled around the room strangling all the voices! Eventually, the best anyone could come up with is that gender identity is simply not experienced by people who do not have a conflict with it. Transgender persons, however, do not have such a corresponding identity and may wish to change their legal, social, and sometimes also physical status. And this is the point that others saw: as a woman who has no issues, gender identity does not even seem to exist, let alone be experienced. But for someone who is transgendered, there appears to be some conflict. And this is where the issues with the remainder of society exist, because the majority of society do not experience their gender identity, the transgendered community fail entirely to convince people that there is a conflict. After all, they are asking the remainder of society to buy into their conflict with something that a majority of people do not experience. But it is deeper than that. Gender is a social construction. As a social construction, this is a group of people seeking to change from one socially constructed gender role to another, because they feel they should belong in that other socially constructed gender role! Abolish these social constructions, and the problem goes away. If we were not so focused on these gender roles, then it would be possible for any person to adopt any gender role that they so wished, or more to the point, they could extract the elements of different gender roles that they wanted.

The case initiated by Lydia Foy in 1997 led to a High Court ruling ten years later that Ireland was in breach of the European Convention on Human Rights by not providing recognition of Dr. Foy in her preferred gender. It took the Irish government another 2.5 years to accept that Irish law is incompatible with the European Convention. In June 2010 the Irish government withdrew its appeal to the Supreme Court and will now recognise Lydia Foy as a woman.

I think that it was quite clear for a long time that Ireland was ignoring the European convention on Human Rights with regard to this issue. Obviously, there is a question for many people as to whether or not it is a Human Right for a person to be able to change their gender. But that is actually a flawed approach as we should be working, not to allow people to legally change gender, but to abolish the divisions caused by gender. If Lydia Foy had not been assigned male at birth, but was just recognised as a person, then there would never have been any kind of conflict and she would never have had to fight for legal recognition. Once again, the false focus on the importance of gender has caused an issue for a person, and denied them the right to live their life. If we abolish gender, then the problem goes away.

The Irish government will introduce legislation to recognise transgender persons in their preferred gender including the possibility for them to obtain new birth certificates. An inter-departmental working group has been set up by the Irish government to develop a legal framework which respects the human rights of transgender individuals. It is crucial that representatives of the transgender community as well as other experts be represented in this working group. This could become a good model for other states which are currently considering improving their legal framework for transgender persons, including Portugal, Hungary, the Netherlands.

There is a danger in involving the transgendered community in this work. The danger is that there is such a wide variance in the needs and desires of this group. This could result in legislation being passed that enables a change of registered gender that is effectively outside of the gender binary, which is the desire of many in the transgendered community. The whole fight should be to abolish or minimise the whole concept of gender. Allow all people to just be people to just be people.

Still viewed as a mental disorder
Ireland is not the only country where transgender persons have faced obstacles in obtaining legal recognition of their preferred gender. Some Council of Europe member states still have no provision at all for official recognition, leaving transgender people in a legal limbo. Most member states still use medical classifications which impose the diagnosis of mental disorder on transgender persons.

Of course, changing recognition of gender for all people would solve most of the problem. As to the mental disorder, well this is a complex area. It needs to be classified by the medical profession in some way. A condition which causes distress to a person is usually classified under the mental health conditions. Treatment surely cures this distress and hence the individual moves on with their life without a ‘condition’ after their transition. But where else do you classify it? As a physical condition? A person states they are female, but has a fully operative and non-flawed male body. Where is the physical condition that needs treating? Surely the desire to remove perfectly sound organs is questionable and of the same order as someone who wishes to remove their fully functioning leg? This is body dysmorphia. Now I am well aware that people have cured their issues through transitioning, but removing the involvement of psychiatrists surely risks people transitioning who should not? And there are already too many people who regret it. There have been a number of well publicised cases and a gender specialist was taken before the General Medical Council because of certain people who later regretted their actions. Strangely, one thing that came out of most of the publicised cases was the fact that these people had circumvented the psychiatrists and headed abroad for surgery. Should it be a mental disorder? It certainly needs treatment in conjunction with appropriate mental health specialists, if only to eliminate other causes.

Even more common are provisions which demand impossible choices, such as the “forced divorce” and the “forced sterilisation” requirements. This means that only unmarried or divorced transgender persons who have undergone surgery and become irreversibly infertile have the right to change their entry in the birth register. In reality, this means that the state prescribes medical treatment for legal purposes, a requirement which clearly runs against the principles of human rights and human dignity.

Some positive legal developments can however be found. The Austrian Administrative High Court ruled in 2009 that mandatory surgery could not be a prerequisite for gender change, and in Germany the Federal Supreme Court indicated in 2005 that operative interventions as a precondition for the change of gender are no longer tenable.

Clearly, the state should never force people through things such as divorce or sterilisation. The first is simply resolved by having equality of relationship status for all people. This means that any two people can enter into a legal relationship. Sterilisation is the same as any non-necessary surgery: why should unnecessary surgery happen, let alone be forced onto people?

Full right to physical and moral security
All countries need to develop expeditious and transparent procedures for changing the name and gender of a transgender person on official documents, in accordance with the case-law of the European Court of Human Rights.

Just remove gender. This would be far more sensible than changing gender. People are people and not a gender. As to names, well a ‘rose by any other name ...’.

People should be free to use whatever name they wish to have.

In 2002, in Goodwin v UK, the Strasbourg Court’s Grand Chamber stressed that in the twenty first century the rights of transgender persons should be effectively protected by states. They should have the same right to personal development and to physical and moral security enjoyed by others in society. One cannot but agree.

This is not a right for transgendered people, but a right for all people.

Highlighting transgendered people may be the purpose of this article, but it applies to all people as opposed to just transgendered people. The implication of how this is written is that it is only transgendered people that suffer these discriminations, but it is not. I have recently debated the issues of equality with some transgendered people. They insisted that sex discrimination no longer occurs in this country. Subsequent transition sees them experiencing the discrimination that the rest of us have experienced as women. Of course, they cannot go back on their view that sex discrimination no longer exists and insist they are being discriminated against because they are transgendered.

There is a strong need for an informed dialogue about the widespread discrimination against transgender persons in Europe today. One contribution will hopefully be a comparative study, the result of which my office will present early next year, on continued discrimination in all parts of Europe on grounds of sexual orientation and gender identity.

There is a need to remove all discrimination. While legislation continues to be worded so that you must belong to a defined group to receive legal protection, then the problems will continue. Once we start from the position of all people are equal and that any allowable discrimination must be allowed by legislation, then we will start to see equality. It can never happen while people are only equal if the law says they are. The law does not change hearts and minds. Discrimination just goes under ground until such time as hearts and minds are changed.

I am concerned about gender, because it negatively impacts my life. I am not free to just behave how I want, because I am expected to conform to the socially constructed gender role for an adult female. Why should I wear a skirt or dress or makeup? Conversely, why should a man be precluded from doing so?

And then there is the question of men being aggressive and dominant and women being submissive and demure. Why should that be the case? My observations show that many successful women have exactly the same traits as men, sometimes even more than their male peers. Where on earth do we get the idea that men and women need to have these traits and that these traits are linked to physical sex?

I believe we should be fighting for gender equality. Part of that is about fighting for women's rights, but much more than that, I believe in gender equality: equality of opportunity for all people, regardless of gender. Such equality would allow everyone to choose to live their life in freedom.