New Belgian Gender Recognition Act: shouldn’t self-determination also include non-binary people?

Pieter Cannoot

Human Rights Centre, University of Ghent

The new Belgian Gender Recognition Act (GRA) entered into force on 1 January 2018. The Act was welcomed by many trans people, activists and other experts. It enabled trans people to apply for legal gender recognition on the basis of self-determination, not pathologizing conditions. The impact of the Act has been overwhelming: in many municipalities the number of applications in January 2018 was much higher than in the whole of 2017. Nevertheless, it may be argued that the Act still falls short from a human rights perspective. This spurred on three LGBTI groups to challenge parts of the Act at the Belgian Constitutional Court. The Court may find inspiration in the recent decision by the German Bundesverfassungsgericht concerning the ‘Third Option’.

The 2017 GRA: sex vs. gender identity

First the good news: due to the adoption of the 2017 GRA, Belgium joined a group of countries that recently decided to base their legal framework for legal gender recognition on self-identification. Persons who believe that their registered sex does not  conform with their gender identity no longer have to undergo a psychiatric assessment or sex reassignment therapy in order to have their self-defined gender identity legally recognised. These countries thus abandoned the stereotypic and incorrect assumption that a person’s sex characteristics, gender identity and expression need to be aligned with each other.

The importance of this evolution should not be underestimated. The abolishing of the necessary (physical) congruence between sex and gender identity has led to a fundamental paradigm shift in the model of sex registration. Indeed, “sex” as a legal category has effectively been transformed from a category based on physical characteristics (especially external genitalia) to a category based on gender identity. Although the initial registration at birth will still be based on the child’s sex characteristics, it will (only) have the value of a presumption of that person’s actual gender identity. In this regard, the law remains grounded in  cisnormativity: the stereotype on the basis of which it’s commonly assumed that persons who are born with ‘typical’ male sex characteristics will develop a male gender identity and persons who are born with ‘typical’ female sex characteristics will develop a female gender identity.

Self-determination “with limitations”

The federal government emphasized in its explanatory memorandum accompanying the Act that the reform of the procedure for legal gender recognition was compelled by Belgium’s international human rights obligations. Indeed, most recent human rights standards and soft law instruments, such as the Yogyakarta Principles +10 and Resolution 2048(2015) and 2191(2017) of the Council of Europe Parliamentary Assembly, call for legal gender recognition solely on the basis of self-determination. In this regard, it is remarkable to note that the Belgian legislator chose to embed the procedure of self-declaration of one’s gender identity in a number of complementary measures, which are intended to prevent identity fraud and so-called ‘light-hearted’ applications for legal gender recognition and resulted in a model of self-determination “with limitations”.

A person who applies for legal gender recognition is confronted with four elements in the procedure, which must ensure that they thoroughly think through their decision concerning their self-defined gender identity and that the procedure will not be used for illegal purposes:

• The applicant must declare that they have had the conviction of inconsistency between their registered sex and their gender identity “for a long time”. Although it might be assumed that this phrase could lead to some form of discretion for the civil registrar who receives such declaration, the circular letter accompanying the Act clarified that it actually has no legal meaning. In other words, it only reflects some lingering discomfort with gender non conformity and the pervasive stereotype that trans persons are ‘confused’;
• It is not sufficient for the trans person to make the declaration for legal gender recognition once; after a ‘waiting period’ of three to ix months, the declaration needs to be repeated before the registrar to prove that they still have the same conviction. Although the compulsory ‘waiting period’ was inspired by the Danish model of gender recognition, the government failed to provide any form of empirical evidence to support the pertinence of this requirement for avoiding ‘light-hearted’ applications.
• During the minimum ‘waiting period’ of three months, the Public Prosecutor may issue negative advice for reasons of public order. In the absence of any advice within three months, the advice is considered to be positive. According to the preparatory works, the Public Prosecutor’s role is essentially aimed at preventing identity fraud. However, it remains unclear to what extent the Public Prosecutor can accurately detect an application with a fraudulent intention, given that – in a procedure based on self-declaration – the applicant does not have to substantiate the declaration. with evidence from the personal sphere to support their conviction of incongruence between their registered sex and their gender identity. Moreover, the government failed to substantiate its presumption that a procedure of legal gender recognition based on self-determination would become inherently vulnerable to fraud. After all, persons who are allegedly fleeing from justice arguably attract more attention when taking on some form of gender nonconforming behaviour, given the lingering societal marginalisation of trans persons. Furthermore, the risk of exploitation of rights is minimal, considering that few rights or duties are gender specific. Going against the cisnormativity of society probably wouldn’t outweigh the advantages, very limited at best, of amending legal gender;
• The cornerstone of the ‘guarantees’ against fraud and/or ‘light-hearted’ applications is the principle of the irreversibility of legal gender recognition. In other words, the amendment of the registered sex is definitive, except for ‘exceptional circumstances’. If such circumstances can be proven, the family court may reinstall the ‘original’ legal sex. Moreover, every following request for legal gender recognition by that same person will have to be based on this strict judicial procedure. The government justified the  irreversibility of gender recognition on the basis that it needed to prevent that a person ‘regularly’ applies for an amendment of their registered ‘sex’.. Indeed, according to the government, “reversibility would lead to a lacking sense of seriousness among potential applicants – who need to seriously reflect on the matter of legal gender recognition”. The level of paternalism towards trans persons in the government’s reasoning is striking, especially considering the total absence of any form of qualitative or quantitative evidence to support their claim of the harm that gender fluidity would pose to society or that gender fluidity would regularly occur. Moreover, the government failed to provide any legal and/or administrative motive that is specifically related to the necessity of the irreversible nature of sex/gender registration. In this regard, it is important to note that the German Bundesverfassungsgericht strongly downplayed the importance of gender for a person’s civil status in its 2017 ‘Third Option’ judgment. It thus appears that the government did not question its own stereotype regarding the self-evident importance of sex/gender registration and its innate form.

In order to avoid fraud and/or ‘light-hearted’ applications for legal gender recognition, the legislature thus introduced paternalizing ‘guarantees’ that are considered to be naturally complementary to a system of self-determination, but actually strive to achieve the same goals that the pathologizing conditions tried to do: reserving the procedure of legal gender recognition for ‘true’ trans persons, and maintaining the innate nature of the legal sex/gender registration as much as possible.

What about non-binary persons?

It is also interesting to note what the Act did not do: the binary normativity (M/F) of the Belgian sex/gender registration system was effectively upheld. While the preparatory works referred to  dominant international human rights law standards to support the depathologization of trans persons, they ignored the call for the legal inclusion of gender non-binarity by those same instruments. The ignorance for the legal position of non-binary persons is difficult to reconcile with the government’s aim to offer all individuals maximal chances to develop into who they truly are. Moreover, the GRA’s official title mentions the umbrella term ‘transgender’ persons, a concept to which non-binary/genderqueer persons are considered to belong. Besides, the non-recognition of non-binary persons in law stands at odds with the federal government’s own policy to use ‘M/F/X’ in vacancy notices, in order to attract all potential candidates.

Considering the judgment of the German Constitutional Court, as well as a 2004 judgment of the Belgian Constitutional Court (No. 159/2004) which held that the binary conceptualisation of sex/gender is not required by the German and Belgian constitutions, it may be argued that the lacuna in the 2017 GRA of recognising in law the existence of non-binary gender identities is discriminatory and violates the right to self-determination, which is enshrined in Article 8 ECHR. Indeed, by encapsulating a liberal procedure of gender recognition in a strictly binary framework – based on a stereotypic conceptualisation of gender – the Belgian legislator continued to withhold from a considerable group of persons the right to be fully recognised as a person before the law.

As mentioned above, in January 2018, three LGBTI interest groups brought an action for partly annulment of the 2017 GRA before the Belgian Constitutional Court. They argued that the lacuna of non-binary gender recognition violated the constitutional principle of equality (Article 10 of the Constitution) read together with Article 8 ECHR, since non-binary (transgender) persons were still not able to have access to legal gender recognition, contrary to binary (transgender) persons. It is clear that the judgment of the German Constitutional Court inspired the groups to pursue their claim. After all, although the German ‘Third Option’ case was based on a provision in the Personenstandsgesetz that applies to the birth of intersex children, the German legislator would arguably be discriminating non-binary (trans) persons if a future ‘positive/affirmative’ sex/gender marker would only be possible for intersex persons.

And intersex persons?

This brings us to the situation of intersex persons. Neither the GRA itself, nor the preparatory works mentioned intersex persons as falling within the personal scope of the new procedure for legal gender recognition. Nevertheless, there seems to be no obvious reason to assume that intersex persons would be excluded from applying for legal gender recognition if, for instance, they were assigned the ‘wrong’ sex at birth. In any case, due to the abolition of all medical requirements in the 2017 GRA, intersex persons who are confronted with incongruence between their registered sex and their self-defined gender identity do not any longer have to be ‘transsexualised’ in order to have access to legal gender recognition.

Contrary to Germany, Belgium does not have a special sex registration system for intersex children. Although Article 57, 1° of the Civil Code foresees a delay of registration of three months when a child is born with ambiguous sex characteristics, eventually the child’s sex must be registered as either ‘male’ or ‘female’. In any case, considering the fact that the 2017 GRA transformed sex registration into gender identity registration for legal and administrative purposes, a future recognition of non-binarity in the law should not be exclusively aimed at intersex persons. Indeed, research has shown that most intersex persons identify within the binary. A ‘positive/affirmative’ non-binary sex/gender marker should therefore never be compulsory for intersex persons, as the German Constitutional Court also correctly held.

It is also important not to forget that legal gender recognition is not the most important issue for intersex persons in their relation with the law and society. The top priority for intersex activists will always remain ending the widespread non-consensual and unnecessary forms of treatment that are performed on intersex children in order to have them comply with social expectations concerning their gender, physical appearance and sexual life.

What will the future bring?

Although the effort made by the Belgian legislator was significant, the federal parliament  failed to take the principle of gender self-determination to its logical conclusion. Not only are trans persons still strongly paternalized when they apply for legal gender recognition, the Act is still characterised by the pervasive and stereotypical cis- and binary normativity. However, many activists and legal scholars are anxiously awaiting the judgment of the Belgian Constitutional Court, which is expected at the end of 2018 or beginning of 2019 and which might force the legislator to abolish the male-female dichotomy in a similar way as the Bundesverfassungsgericht did. Nevertheless, it is clear that this would only be the starting point for new debates concerning the scope of sex/gender inclusivity in the law, and the relevance of legal sex/gender registration as such. 

Pieter Cannoot is a PhD researcher at the Human Rights Centre at Ghent University.