Depathologizing Gender Identity Through Law

GATE Series on Legal Depathologization, Nº1

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About the Publication

Trans and gender diverse people have not only been pathologized by psycho-medical institutions and their classifications, but also by the laws and policies governing our lives. Around the world, legal systems have adopted pathologizing approaches to differentiate between “proper” and “improper” subjects of human rights and to condition, restrict or even deny access to those rights. One of the key goals of depathologizing trans and gender diverse people is to stop the justification of systemic legal cissexism in psycho-medical roots. However, as this report shows, processes of legal depathologization can also be possible.

Legal depathologization refers to the removal, through legislative change, judicial decision or executive order, of certain legal or policy provisions that treat trans people as inherently unwell or disordered on the basis of their gender identity, including, forced or coerced psycho-medical assessment and/or diagnoses, psychotherapy, hormonal and surgical processes, and sterilization. Legal depathologization can also refer to the adoption of laws that explicitly prohibit trans pathologization or provide for legal gender recognition and/or gender affirming care without pathologizing requirements.

Purpose of the Publication

This paper intends to show that depathologizing gender identity through law is a valid and achievable goal and provides examples of legal depathologization of gender identity at the national level. It seeks to lay out the various paths to legal depathologization that have found success in different countries, as well as to examine the ongoing efforts and challenges faced in some States by lawmakers and advocates for trans equality. Ultimately, it seeks to inform domestic processes for legal depathologization and catalyze the realization of human rights and fundamental freedoms of trans and gender diverse people.

Conclusions

While the ICD-11 is expected to take some time to roll out worldwide, States can lead by example, and move ahead with depathologization of gender identity at the national level. Through consultative processes with relevant stakeholders, law and policy makers can gain a deeper understanding of how discriminatory classifications affect trans people.

The case studies outlined in this paper provide examples of how States can amend laws, policies and practices that treat trans people as ill or disordered, through recognizing their autonomy and self-identification. Good practice allows for simple, accessible and fast administrative procedures for name and gender change, without abusive requirements such as forced medical diagnosis or treatment.

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Suggested citation

GATE: Kara, S. Depathologizing Gender Identity Through Law. GATE Series on Legal Depathologization, Nº 1. New York: GATE, 2020.

Copyleft

You are free to share (copy and redistribute the material in any medium or format) and to adapt (remix, transform, and build upon the material) this paper. You must give appropriate credit, provide a link to the license, and indicate any changes that were made. You may do so in any reasonable manner, but not in any way that suggests that the licensor endorses you or your use of the material. You may not use the material for commercial purposes. If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.

Dedication

While this publication was being finalized, a key trans rights activist who worked tirelessly in the movement for depathologization and in the struggle for reparations passed away. Her name was Maria Sundin. We dedicate this publication to her beloved memory.

Depathologizing Gender Identity Through Law
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