Women and Justice: Keywords

In 2007, the High Court held that the failure to allow the applicant, a transgender woman who had undergone gender-affirming surgery, to obtain a new birth certificate recording her gender as female violated her rights under Article 8 and 12 of the European Convention on Human Rights, which had been made part of Irish law, despite having found in previous proceedings involving the same applicant that her constitutional right to privacy was not disproportionately or excessively infringed. The Court agreed with the applicant that existing Irish law barred the effective recognition of her Article 8 and 12 rights in Ireland as they rendered her without the power to correct or vary the original entry on her birth certificate. The High Court considered the European Court of Human Right’s 2002 decisions in Goodwin v. United Kingdom and I. v. United Kingdom, in which the Court held that the State’s failure to have a system of law in place affording proper respect for a trans person’s Convention rights violated Articles 8 and 12 of the Convention.

On a petition filed by a transgender individual for violation of constitutional rights, arguing that the census excluded transgender people with disabilities. The High Court ordered the Census Commission to include transgender in a separate column. This followed a recent order dated 09 January 2017 in writ petition (No. 37499/2016), where the High Court ordered the Census Commission to include the category “Transgender” under the column “Sex” in Form-2. The transgender category was assigned code/number 3 in the said column of Form-2 under disability. The High Court’s rationale was that exclusion of persons with disabilities from the National Census would offend their welfare and future prospects as a population and therefore violate constitutional provisions of security, dignity and freedom of speech of a person. The court further observed that Pakistan had ratified the UN Convention on the Rights of Persons with Disabilities in 2011, which places an international obligation on Pakistan to collect appropriate information about persons with disabilities and to implement policies accordingly.

The plaintiff-husband, who transitioned from female to male, and the plaintiff-wife requested the local public agency to amend their family registry to state the plaintiff-husband as the father of their child. The child was born by artificial insemination and had no blood relationship with the plaintiff-husband. The Supreme Court determined that, since the child was conceived by the plaintiff-wife during marriage, he is presumed to be a child of the plaintiff-husband under the Civil Code, and ordered the family registry to be amended.

本件は、性同一性障害で女性から男性に性転換した原告である夫と原告の妻が、夫を子の父とする戸籍訂正を地方公共団体に対して求めた事案である。子は人工授精で生まれ、夫との血縁関係が存在しなかった。最高裁は、子は原告の妻が婚姻中に妊娠したものであるから、民法上、原告である夫の子であると推定されると判断し、戸籍の訂正を命じた。

Five notifications regarding discrimination of students by a Foundation were made to the Equality Ombudsman after the broadcast of a TV program. In the program, the students of a school owned by the Foundation were separated by gender on the school bus. The Equality Ombudsman’s investigation noted that a gender-based separation was also made in the gymnastics classes. According to Chapter 2 Section 5 of the Swedish Discrimination Act, it is prohibited for an education provider or an employee of the provider to discriminate against any child or student that participates in the school’s operations. For gender-based separations not to constitute discrimination, either the activities of the groups must be equivalent, without any student finding it disfavoring to be separated by gender, or the separation must be limited to moments where the students’ gender is of such importance that they are not in a comparable situation. The Equality Ombudsman ruled that the separation of the students in the gymnastics classes constituted a risk of one or more students being discriminated against for gender and transgender identity or expression. However, the separation on the school bus was not found to constitute a risk of violation of the Discrimination Act.

The applicant was registered as female at birth, but has always identified himself as male. He lived and appeared as a man in all areas of life, and had begun hormonal treatment to transition. The applicant filed a request with the Civil Status Office to change his name and gender marker to reflect his male gender identity, but the request was rejected. He appealed the decision to the Civil Registration Agency, which rejected the appeal on the grounds that the applicant provided no evidence that his current name prevented his integration in society, and no medical report supporting his request for a change of his gender marker. The applicant filed a claim with the Basic Court, and, only one week later and before a decision was rendered, referred the matter to the Constitutional Court. The applicant alleged the Civil Registration Agency’s decision violated his fundamental rights and freedoms, guaranteed by Articles 23 (Human Dignity), 24 (Equality Before the Law), and 36 (Right to Privacy) of the Constitution of Kosovo, and Article 8 (Right to Respect for Private and Family Life) of the European Convention on Human Rights. The applicant requested to be exempted from the legal obligation to exhaust all legal remedies before seeking a constitutional review on the grounds that the regular courts’ legal remedy would not be effective or sufficiently certain because of his special circumstances and the length of the proceedings. The Constitutional Court surveyed foreign constitutional courts via the Venice Commission for their respective relevant case law, confirming the general requirement for an applicant to exhaust his/her legal remedies before seeking constitutional review. The court noted the existence of a very similar and recently decided case, in which a person sued the Civil Status Office and Civil Registration Agency for their refusal to grant his request to change his name and gender marker from female to male after a successful gender reassignment surgery. The Basic Court ruled for the applicant and ordered the changes made, and the decision was upheld by the Court of Appeals. The Constitutional Court therefore determined that the regular courts could furnish an effective and sufficiently certain legal remedy for the applicant. Moreover, the court noted that the applicant was not seeking review of an already lengthy court proceeding, but merely of the possibility of one, and in any event the Basic Court and Court of Appeals disposed of the above mentioned precedent in reasonable time. Accordingly, the Constitutional Court ruled the applicant’s referral inadmissible because it was premature. (Also available in Srpski and English.)

Brazil’s Supreme Court decided by a majority that transgender individuals could change their legal name and gender originally included in their civil registry, without the presentation of psychological or medical evaluation, hormonal treatment, transition surgery, or any other medical procedure. The majority understood that no judicial authorization is necessary for the amendment, stating only a self-written report of the trans person is sufficient to change his/her legal name.

O Supremo Tribunal Federal – STF decidiu, por maioria de votos, que as pessoas transgêneros podem alterar seu prenome e sua classificação de gênero no registro civil, mediante auto-declaração, sendo desnecessária a apresentação de laudos psicológicos, tratamento hormonais ou procedimentos cirúrgicos ou de autorização judicial.

The plaintiff-appellant a trans woman lieutenant in the Salem, Ohio, Fire Department, sued the City of Salem, alleging discrimination based on sex in violation of Title VII of the Civil Rights Act. According to the plaintiff’s complaint, after she began expressing a more feminine appearance at work on a full-time basis, her co-workers informed her that she was not acting masculine enough. She then notified her immediate supervisor that she had been diagnosed with gender identity disorder and that she planned to physically transition from male to female. The plaintiff’s supervisor met with the City of Salem’s Law Director and other municipal officials, who required the plaintiff to undergo three psychological evaluations. The plaintiff retained legal counsel, received a “right to sue” letter from the U.S. Equal Opportunity Employment Commission, and was shortly thereafter suspended for one 24-hour shift, allegedly in retaliation for retaining counsel. The district court dismissed his complaint, but the Sixth Circuit reversed and remanded, holding that the plaintiff sufficiently plead a prima facie case of retaliation under Title VII, as well as claims of sex stereotyping and gender discrimination.

On February 6, 2009, four transgender individuals (A, B, C, D) identifying as female were arrested and charged with both Loitering and Wearing Female Attire. The police detained the Applicants for the entire weekend without explaining the charges against them. Wearing Female Attire is prohibited under Section 153(1)(XLV11) of the Summary Jurisdiction (Offences) Act, chapter 8:02. At the hearing on February 9, 2009, the Chief Magistrate commented that the Applicants were confused about their sexuality and told them they were men, not women, and needed to give their lives to Jesus Christ. The Applicants, who were all unrepresented at the time, pleaded guilty to the charge of Wearing Female Attire. Applicants A, B and D were fined $7,500, and Applicant C was fined $19,500 (Guyanese dollars). The loitering charges were eventually dismissed. The Applicants contacted the Society Against Sexual Orientation Discrimination (SASOD), the Equal Rights Trust’s Guyanese partner, about the case. SASOD agreed to represent Applicants and filed a Notice of Motion challenging the Magistrate’s Court decision and seeking redress. The Applicants argued that the police violated the Constitution because the officers failed to inform them of their arrest and did not permit the Applicants to retain counsel. They also argued that Section 153 (1) (XLV11) of the Summary Jurisdiction (Offences) Act 1893 is: (1) vague and of uncertain scope; (2) irrational and discriminatory on the ground of sex; and (3) a continuing threat to their right to protection against discrimination on the ground of sex and gender under the Constitution. Applicants further argued that, by instructing the Applicants to attend Church and give their lives to Jesus Christ, the Chief Magistrate discriminated against them on the basis of religion, which violated a fundamental norm of the Co-operative of the Republic of Guyana as a secular state in contravention to the Constitution. The Court upheld the Applicants’ claims in relation to their fundamental right to be informed of the reason for their arrest under Article 139 of the Constitution, but rejected all of their other claims. The Court found that the prohibition of cross-dressing for an improper purpose was not unconstitutional gender or sex discrimination, impermissibly vague, or undemocratic. The Court also struck SASOD’s application in full, finding that SASOD did not have standing to be an applicant in the case.

Article 240 criminalizes discrimination and incitement to hatred and violence based on race, gender, sexual orientation, and gender identity, among others. The sentence is imprisonment for one to eight years.

O artigo 240 criminaliza a discriminação e incitamento ao ódio e à violência baseado em raça, gênero, orientação sexual e identidade de gênero, entre outros. A pena é de prisão de um a oito anos.

Sweden’s Gender Recognition Act states that a person may be legally recognized as another gender provided that they: (i) over a long period of time have perceived that they belong to that gender, (ii) have presented in accordance with the chosen gender, (iii) are expected to live in accordance with the gender identity in the future, and (iv) are at least 18 years old. Applications for legal gender change are reviewed by the National Board of Health and Welfare (Sw. Socialstyrelsen) and their decision may be appealed in the Administrative Court. The requirement for sterility was removed from Sweden’s Gender Recognition Act on 1 July 2013.

Law No. 05/L-020 on Gender Equality promotes gender equality, by defining the relevant concepts, setting forth various measures to protect equal rights of genders, and specifying the institutions responsible for gender equality. The Law defines “woman” and “man” as including any person who considers oneself as such, and describes gender identity – which does not require medical intervention – as a “protected characteristic.” Direct and indirect gender discrimination are prohibited under the Law, including less favorable treatment of women for reasons of pregnancy, maternity, or sexual orientation, and gender-based violence. Harassment and sexual harassment are also forbidden, and whether a person refuses or surrenders to such behavior shall not be used as a basis for a decision affecting that person in a legal proceeding. The Law directs the Kosovo institutions to implement various general measures to achieve gender equality in Kosovo, including gender mainstreaming in all policies and legislation, gender budgeting in all areas, and ensuring recruitment and appointment are consistent with the requirement for equal representation of women and men. In areas where inequities exist, public institutions are further instructed by the Law to take temporary special measures to accelerate the realization of gender equality, including quotas, preferential treatment, hiring, and promotion. The Law in particular requires legislative, executive, and judicial bodies at all levels to adopt special measures until equal gender representation is achieved. The Law establishes an Agency for Gender Equality to support the implementation of the Law, and further mandates that all ministries and municipalities must appoint gender equality officials, and allocate sufficient resources from their budget, to implement the Law. Discrimination on bases including sex, pregnancy, or birth, is prohibited in employment matters including access to employment or training, and working conditions. In regard to education, the Law proscribes sex discrimination in access to education and scholarships, evaluation results, and attainment of degrees, and mandates the inclusion of gender equality education in school curricula at all levels. Persons who believe the principle of equal treatment has not been implemented in relation to them may initiate proceeding in accordance with the Law on Protection from Discrimination. Violations of the Law are punishable by fines of up to 700 Euros for individuals, and 900 Euros for legal entities. (Unoffocial English version available here.)

The Anti-Discrimination Act 1998 makes it unlawful to directly or indirectly discriminate on the basis of certain grounds (“attributes”) in connection to public life; including employment, education and training, and provision of facilities, goods and services. The various unlawful grounds of discrimination include: sexual orientation, lawful sexual activity, gender, gender identity, intersex variations of sex characteristics, martial status, relationship status, pregnancy, breastfeeding, parental status, family responsibilities, irrelevant medical record, association with a person who has, or is believed to have, any of these attributes. Additionally, the Act prohibits inciting hatred towards a person on the grounds of their race, disability, religious beliefs, sexual orientation, or gender identity, as well as harassment, sexual harassment, and victimization towards a person based on protected attributes or their intent to file a claim under this Act. It also prohibits a person from promoting discrimination through a sign, notice, or advertisement. The Act also establishes the Anti-Discrimination Commissioner to investigate and resolve complaints. Complaints can be initiated by the person targeted by the discrimination, a trade union, or another representative for the targeted person. The Commission can also investigate any discrimination ex officio. If the Commissioner believes that the complaint cannot be resolved by conciliation or that the nature of the complaint is such that it should be referred to the Tribunal, the Commissioner can refer the complaint to the Anti-Discrimination Tribunal. If the Tribunal finds that a complaint is substantiated, it may, among other remedies, order the respondent to pay the complainant an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination or prohibited conduct.

Discrimination on the basis of sex is prohibited in all public colleges, community colleges, universities, and all other public institutions of higher learning in the state that are operated by the board of governors for higher education. This prohibition applies to employment, recruitment, and hiring practices, employment benefits, admissions, curricular programs, extracurricular activities including athletics, counseling, financial aid including athletic grants-in-aid, student medical, hospital, and accident or life insurance benefits, facilities, housing, rules and regulations, research, and all other school functions and activities. Notwithstanding these prohibitions, schools may do the following: (i) maintain separate but comparable restrooms, dressing, and shower facilities for males and females, including reasonable use of staff of the same sex as the users of these facilities; (ii) provide separate teams for contact sports or for sports where selection for teams is based on competitive skills, provided that equal athletic opportunities which effectively accommodate the interests and abilities of both sexes are made available; (iii) maintain separate housing for men and women, provided that housing for students of both sexes is as a whole both proportionate in quantity to the number of students of that sex that apply for housing and comparable in quality and cost to the student; and (iv) permit the establishment and operation of university based social fraternities and sororities.