This presentation explores legal approaches to gender identity and gender expression in Europe and Latin America. In particular, the presentation will highlight the tension between a focus on the right to health services and treatment and the problems that a medicalization of non-conforming gender expressions imply from a human rights perspective.
By examining laws and cases from the two regions-including court jurisprudence and legislation from Germany, Spain, Kazakhstan, Colombia and Peru, as well as from the European Court of Human Rights-this paper will address the following questions: How can the law protect the rights of transgendered individuals, and what difference does a human rights perspective make? Is the ‘right to health’ perspective a fruitful way to address gender identity issues at all? If so, how can the right to health and treatment for transgendered individuals be promoted through the law while also protecting their self-determination and right to dignity? For example, the European Court of Human Rights suggests that transgendered individuals should be entitled to state funding for gender reassignment, relying on the definition of ‘Gender Identity Disorder’ in ICD-10 and DSM-IV. However, the same Court has also recognized the freedom to define oneself as male or female as one of the most basic aspects of self-determination. Differing perspectives on this issue partly contradict one other and may result in different logical conclusions with different human rights implications.
