The struggle of trans and gender-diverse persons

Definitions

Gender identity refers to each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.¹ The term "gender-diverse" is used to refer to persons whose gender identity, including their gender expression, is at odds with what is perceived as being the gender norm in a particular context at a particular point in time, including those who do not place themselves in the male/female binary; the more specific term "trans" is used to describe persons who identify with a different sex than the one assigned to them at birth.

A spiral of exclusion and marginalisation

Gender-diverse and trans people around the world are subjected to levels of violence and discrimination that offend the human conscience:

• they are caught in a spiral of exclusion and marginalisation: often bullied at school, rejected by their family, pushed out onto the streets, and denied access to employment;
• when they are persons of colour, belong to ethnic minorities or are migrants, living with HIV, or sex workers, they are particularly at risk of violence, including of killing, beatings, mutilation, rape and other forms of abuse and maltreatment; and
• in order to practice their right to recognition before the law, gender-diverse and trans persons are often victim to violence in health-care settings such as forced psychiatric evaluations, unwanted surgeries, sterilization or other coercive medical procedures, often justified by discriminatory medical classifications.

Trans persons are particularly vulnerable to human rights violations when their name and sex details in official documents do not match their gender identity or expression. Today, however, the vast majority of trans and gender-diverse persons in the world do not have access to gender recognition by the State. That scenario creates a legal vacuum and a climate that tacitly fosters stigma and prejudice against them.

At the root of the acts of violence and discrimination lies the intent to punish based on preconceived notions of what the victim's gender identity should be, with a binary understanding of what constitutes a male and a female, or the masculine and the feminine. These acts are invariably the manifestation of deeply entrenched stigma and prejudice, irrational hatred and a form of gender-based violence, driven by an intention to punish those seen as defying gender norms.

A beacon of hope: depathologization of trans identities

For years, mental health diagnoses have been misused to pathologize identities and other diversities. In 2017, the UN Special Rapporteur on the right to health stated that reducing trans identities to diseases aggravated stigma and discrimination.

In 2019, the World Health Assembly adopted the eleventh revision of the International Classification of Diseases (ICD-11), which removed trans-related categories from the chapter on mental and behavioural disorders. The revision depathologizes trans identities and is considered an important step forward to ensure trans persons can live free from violence and discrimination.

It is important to note that for a long time, pathologization has had a deep impact on public policy, legislation and jurisprudence, thus permeating in all realms of State action around the world and the collective conscience. Eradicating the conception of some forms of gender as a pathology from everyday life will be a longer process that will require further measures to that end.

States are advised to:

• review their medical classifications based on ICD-11;
• adopt strong proactive measures, including education and sensitisation campaigns to eliminate the social stigma associated with gender diversity;
• give access to good-quality health-care services and health-related information to trans persons and consider establishing the provision of gender-affirming care as a State obligation not dependent on a diagnosis; and
• take strong measures to end so-called "conversion therapy", involuntary treatment, forced or otherwise involuntary psychiatric evaluations, forced or coerced surgery, sterilization and other coercive medical procedures imposed on trans and gender-diverse persons.

Read the statement by UN experts welcoming the revision and consult the updated International Classification of Diseases issued by the World Health Organization.

Legal gender recognition, still a distant dream for many

Self-determined gender is a cornerstone of a person's identity. The resulting obligation of States is to provide access to gender recognition in a manner consistent with the rights to freedom from discrimination, equal protection of the law, privacy, identity and freedom of expression.

The lack of access to gender recognition negates the identity of a person to such an extent that it provokes a fundamental rupture of State obligations. Denying someone the legal recognition of their gender negatively impacts all aspects of their life: their right to health, to housing, to access social security, to freedom of movement and residence; and it also fuels discrimination, violence and exclusion in social settings, including educational and work environments. When States recognize the gender identity of trans persons, they often impose abusive requirements, such as medical certification, surgery, treatment, sterilization or divorce.

The Independent Expert on sexual orientation and gender identity has called on States to ensure legal gender recognition is available to all persons everywhere. The Independent Expert urged States to enact legislation and adopt public policy in line with the recommendations issued in 2015 by the United Nations High Commissioner for Human Rights, which indicates that the process of legal recognition of gender identity should:

• be based on self-determination by the applicant;
• be a simple administrative process;
• be accessible and, to the extent possible, cost-free;
• not require applicants to fulfil abusive medical or legal requirements;
• recognise non-binary identities (gender identities that are neither "man" nor "woman"); and
• ensure that minors also have access to recognition of their gender identity.

Social inclusion

States have the power, the duty, to put an end to the ordeal faced by trans and gender-diverse persons and foster their inclusion. In addition to the recommendations mentioned above, States should:

• run sensitization campaigns to eliminate the social stigma associated with gender diversity;
• adopt education policies addressing harmful social and cultural bias, misconceptions and prejudice;
• address negative and/or stereotypical portrayals of trans and gender non-conforming persons in the media;
• adopt measures to protect trans and gender-diverse children from all forms of discrimination and violence, including bullying;
• review laws and policies that exacerbate police abuse and harassment, extortion and acts of violence against people based on gender identity (e.g. laws based on public decency, morals, health and security, including those on begging and loitering, and laws criminalizing conduct seen as "indecent" or "provocative");
• adopt anti-discrimination legislation that includes gender identity among prohibited grounds;
• enact hate crimes legislation that establishes transphobia as an aggravating factor for the purpose of sentencing; and legislation in relation to hate speech on the grounds of gender identity;
• collect data to assess the type, prevalence, trends and patterns of violence and discrimination against trans and gender diverse persons and – on that basis - inform policies and legislative actions and address gaps in investigations, prosecution and the remedies provided; and
• take affirmative action to redress structural discrimination and to remedy socioeconomic inequalities.

Thematic reports

Legal recognition of gender identity and depatologization (2018)

The Independent Expert's October 2018 report to the UN General Assembly examines the process of abandoning the classification of certain forms of gender as "pathologies". It clarifies the duty States have to respect, and promote respect of gender recognition as a component of identity. It also highlights some effective measures to ensure respect of gender identity and provides guidance to States on how to address violence and discrimination based on gender identity.

Socio-cultural and economic inclusion (2019)

The Independent Expert's October 2019 report to the UN General Assembly takes a look at social, cultural and economic inclusion of LGBT persons. Addressing their social and economic rights is key to addressing violence and discrimination on the basis of sexual orientation and gender identity. The report discusses the dynamics of inclusion and presents conclusions and recommendations for moving forward.

Statements

Promote tolerance and diversity, speak out against hate and bigotry (2019)

Ÿ Leave no LGBT person behind (2018)

Statement on the occasion of International Transgender Day of Visibility (2018)

Ÿ Embrace diversity and protect trans and gender diverse children and adolescents (2017)

Press releases

UN experts hail move to 'depathologise' trans identities (2019)

States must act to stop bullying of LGBT students (2019)

"Vicious cycle of hatred" against LGBT people being fuelled daily (2019)

Levels of violence against trans people "offend the human conscience" (2018)

Some communications specific to gender identity – allegations and States' replies

• Pakistan, Attacks on transgender rights defenders, 12 January 2021
• Hungary, Proposed bill that would restrict children's identity to their sex assigned at birth and impose an upbringing that "reflects the values based on Hungary's constitutional identity and Christian culture", 15 December 2020 - Reply
• Romania, Proposed bills that would prohibit any discussion on "gender theory or opinion" in educational establishments, 11 September 2020 – Replies 1 &2
• Republic of Korea, Dismissal of the first openly trans soldier following surgery to affirm her gender identity, 29 July 2020 - Reply
• Cambodia, Arrest and detention of an online clothes seller and a transgender woman, 1 May 2020 - Reply
• Hungary, Proposed bill that would make it impossible for trans and gender diverse people to legally change their sex/gender, 14 April 2020
• Egypt, Arrest and detention of a woman human rights defender and a trans man, 17 December 2019
• Honduras, Killing and attempted murder of trans women human rights defenders, 7 October 2019 – Replies 1, 2, 3
• Armenia, Death threats against a transgender rights defender following a speech at the National Assembly of Armenia, 18 April 2019 - Reply
• Egypt, Arrest and detention of a transgender woman and LGBTIQ human rights defender, 20 March 2019
• Honduras, Attempted murder, harassment, assaults and death threats, rape and intimidation and persecution against trans women's defender and LGBTI human rights defenders, 12 October 2018
• United States of America, Death threats, acts of violence and intimidation, harassment, and discrimination against a human rights defender and transgender activist, 7 August 2018
• Honduras, Killing of a trans woman and a gay man, 9 March 2018 - Reply
• Indonesia, Arrests, detention and ill-treatment of twelve waria, or transgender women, in Aceh province, 12 February 2018 - Reply
• Chile, Bill on the right to gender identity that includes discriminatory provisions perpetuating the stigmatisation and pathologization of trans people, 23 August 2017 - Reply
• Honduras, Killing of a trans woman and LGBTI defender, 10 July 2017
• El Salvador, Killing of three trans women, acts of intimidation and threats, including acts of extortion against a woman human rights defender, 26 May 2017 – Reply

Search all communications and States' replies in the database.

Read about the communication procedure on OHCHR webpage.

[1] The Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity (2006).