Tuesday, 31 August 2010

Mandated Sterilisation, Mandated Divorce

From the EU Commission for Human Rights:
Ireland is not the only country where transgender persons have faced obstacles in obtaining legal recognition of their preferred gender. Some Council of Europe member states still have no provision at all for official recognition, leaving transgender people in a legal limbo. Most member states still use medical classifications which impose the diagnosis of mental disorder on transgender persons.

Even more common are provisions which demand impossible choices, such as the “forced divorce” and the “forced sterilisation” requirements. This means that only unmarried or divorced transgender persons who have undergone surgery and become irreversibly infertile have the right to change their entry in the birth register. In reality, this means that the state prescribes medical treatment for legal purposes, a requirement which clearly runs against the principles of human rights and human dignity.
The USA has no requirement for Forced Divorce - but in those states that allow changes at all, Forced Sterilisation is universal - at least for women.

The various states of Australia require both Forced Sterilisation and Forced Divorce. But by a quirk of the law, Federally there's no such demand, if the person concerned was born overseas.

The UK does not have Forced Sterilisation, but does have Forced Divorce, and also requires a formal legal diagnosis of a mental disorder.

I was born in the UK. Because I'm Intersexed, I can't have the required diagnosis of Gender Dysphoria - which apparently equates to "Transsexuality" under the World Health Organisation's diagnostic manual, the ICD-10. But even if I managed that, I'm still married, so would be excluded on those grounds too.

I can think of no other minority group subject to such provisions - not since May 1945, anyway.

12 comments:

Zimbel said...

I can't think of cases of forced divorce with forced sterilization, but as for forced sterilization:

Eugenic Protection Law (1948, Japan) (a version in English)

The Emergency (India, 1975-1977)

The mentally ill, homosexuals, criminal and epileptics (among other) via "The Oregon Board of Eugenics (1923-1981) (while this may be one of the latest surviving programs in the U.S.A., about half of all states had such laws on the book over a decade after WWII, if many of them no longer enforced them). Also note that California had one of the largest forced sterilization programs outside of (and older than) the third reich.

Roma sterilized in the 1990s in Czech Republic.

And, yes, there are more. These are just the ones I chased down references for.

Zimbel said...

Getting back to the point of your post, Enforced Sterilization is a crime against humanity under ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT Article 7 1g:

Article 7: Crimes against humanity

1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;


While I don't think that transgendered or intersex fit under article 6 (genocide - which is limited to "national, ethnical, racial or religious group"), article 7 is much more broad, as it can be performed against "any civilian population"

Obviously, I'm not an international human rights lawyer. However, I'm not seeing any obvious reason why this treaty couldn't be applied in some of these cases - Ireland has ratified this treaty, as have the U.K., and Australia.

Jo said...

Actually - peeling aside all the emotionalism, I'm having serious difficulty trying to find anything remotely resembling enforced sterilization.

Maybe somebody could explain where any kind of force is being used to involuntarily sterilize any person or group of persons?

You, Zoe, along with many others have been responsible for encouraging the ongoing conflation between sex and gender.

Notwithstanding that most legislation is aimed at allowing a change of sex in cases where individuals undertake a process which alters their anatomy so that it predominately reflects the characteristics of the target sex, rather than the one they were born.

Transsexual people do not undergo forced sterilization. Rather they are desperate to rid themselves of those biological characteristics that conflict with their neurobiological sex.

No enforced sterilization there. Rather a group of people willingly and freely, without coercion undertaking a process entirely of their own volition.

Only persons who do not experience transsexualism but believe they should be treated as if they did for some purposes and not for others could conceivably arrive at the conclusion that some kind of force is being applied.

It is not. If you don't want to change sex nobody is forcing you to and you are free to choose not to.

At no point is any pressure, coercion, or force being applied.

Having determined not to change anatomical sex, you are not free to demand the same status as somebody who has!

Zoe Brain said...

Jo - unless you were born in Western Australia, and unless you have satisfied the Commission that you have met their requirements, so have been granted a Certificate....

Then you will be treated like these men while within Western Australia. As a man, in your case.

Sterilisation is required - but it's not sufficient.

The WA law on discrimination based on gender history only applies to those with certificates. Not to those born outside WA.

Jo said...

Hello Zoe :-)

Re the WA Decision.

Please read the majority judgement of MARTIN CJ and PULLIN JA .

para.104 -

The critical question is whether, by the reassignment procedure, an applicant has acquired sufficient of the characteristics of the gender to which they wish to be assigned to be identified as a member of that gender.

and, at para 114:

Rather, save for their clitoral growth, and the impact which
testosterone treatment has had upon ovulation and the functioning of their uterus, each otherwise has the external genital appearance and internal reproductive organs which would, according to accepted community standards, be associated with membership of the female sex...the express requirement for at least some genital modification as part of the 'reassignment procedure' which is a prerequisite to an application for a recognition certificate reinforces that conclusion.


and, at 115

Each of AB and AH, possess none of the genital and reproductive
characteristics of a male, and retain virtually all of the external genital characteristics and internal reproductive organs of a female.


The requirement for less
female characteristics and more male characteristics falls short of a requirement for full phalloplasty. What it does demand is a re-balancing of characteristics such that they are weighted predominately toward male, rather than toward female.

Having read this decision several times, very carefully, I am not convinced that it is wrong, If the appellants were to have their external female organs surgically fused and a scrotum constructed from the labia, thus giving the appearance of male sex organs, I'm almost certain their application would succeed.

More to the point is the claim of enforced sterilization.

Again nobody is being forced
to do anything! The WA legislation is really very poorly drafted - but at its core the intention is a create mechanism to allow for a legal change of sex

Quite simply the Appellants had not (sic) changed sex If the appellants are TS ( and I am assured by a fellow OII director that they are) then they will not be experiencing this requirement as 'forced sterilization.'

It would only be thought 'enforced sterilization" by somebody who wanted to obtain the certificate but did not experience transsexualism.

Hopefully, once the dust has settled the appellants will take the decision for what it is: the guidance that should have been contained in the legislation, as to what standards need to met to qualify for a change of status, in this case from female to male.

I cannot comment on the anti-discrimination provisions of WA. If they are as you say then they surely do need to be changed!

Jo said...

Hi Zoe :-)
This last response does not address the enforced sterilization claims.

Enforced sterilization can only occur when it is conducted against the will of the person it is performed on - perhaps a little like the non-consensual cosmetic genital surgeries performed on intersex babies - as opposed to the wholly consensual cosmetic genital surgeries performed on T/S Folk.

I can see no instances of enforced surgeries - other than some years ago in apartheid Sth. Africa where I understand a number of Gay soldiers were literally forced into SRS so they wouldn't be gay anymore!

For your private consideration I have emailed you my analysis (for OII Australia) of the WA decision.

I hope it will clarify that issue for you.

If WA anti discrimination legislation is as you say, then that needs to be changed. I am far from convinced that the majority verdict is unsound.

Jo said...

re the forced Sth African sex changes - these should get you started:

http://www.thegully.com/essays/africa/000825sexchange.html

http://www.q.co.za/news/2000/07/000728-sexchange1.htm

http://www.pfc.org.uk/node/725

Cheers

Kathrin said...

This post is off the main page, so I don't know if anyone will see this.

In the US, for people born abroad, there is no (longer) a requirement to be sterilized.

The federal birth certificates have the same policies as the updated passport rules, which makes a lot of things simpler.

Battybattybats said...

Coercion is force.

To require in order to obtain a panoply of basic fundamental human rights (including ones directly related to safety and security and access to essential services) which others fully enjoy that a person be steralised is forced steralisation via coercion. I'd be horrified if coercive force is not covered in international law!

Also i suggest the definition of race needs to require that all inheritable characteristics count as racial. Skin pigment, hair colour, just as arbitrary as Transgender which has at least some genetic component let alont any other inheritable characteristic. A coercive sterilisation law which results in the reduction of an hereditary characteristic in the gene pool via state policy needs to be considered genocide because that is the practical function. One with bearing on many other inheritable characteristics.

Jo said...

To require in order to obtain a panoply of basic fundamental human rights (including ones directly related to safety and security and access to essential services) which others fully enjoy that a person be steralised is forced steralisation via coercion.

Just exactly what basic fundamental rights are you denied, Bbb?

You have exactly the same rights as any other citizen of Australia, icluding the right to have a change of sex recognised should you ever make the mistake of doing that.

In fact I love this latest TG argument. Absolutely nothing anyone could say or do could illustrate the difference between TG and T/S people more succinctly than this latest piece of TG hysteria!

Transgender which has at least some genetic component...

Huh? It does? you mean they found a gene that makes you want present in public as the opposite sex?

Insofar as the WA decision has got you and Zoe worked up, I suggest you're misinterpreting it. I ran a case analysis and commentry on TFF.

You can access it at this URL.

http://trans-friedfluff.blogspot.com/

Perhaps it might help clear your collective heads - at least enough to understand the court's decision.

Anonymous said...

Black is not white, up is not down, the sun does not come up in the west and sex is not a performance!
Despite the self serving rhetorical spin being given by those who want to play sex and still be legally accorded the rights of those who are that sex, these laws are compassionate! They allow those who are willing to do the work required to become (as close as medical science will allow) the sex they are. Its a reset and as such it puts the same requirements upon that person as it does any other member of that sex

That includes as is in your case Zoe. That if where you live, women cannot be married to other women, and you want legal recognition as a woman that you must comply as any other woman would.

But you don't want to deal with life as a woman you want special dispensation accorded you because you were once a man.
You and every other person howling about this are not asking for equality, your asking for extra privileges!

Namely you want to have your cake and eat it too. Doesn't and shouldn't work that way. Time to wake up, grow up and (pardon the pun) grow the balls needed to finish what you started and stop trying to screw the pooch for those who do!

Zoe Brain said...

Hi Anne (O'Namus)

Exactly what "special privilege" am I getting here?

I have a letter from the erstwhile Federal Attorney General, Phillip Ruddock, not exactly a lefty, saying that my marriage is valid.

Same-sex marriages are legal under these circumstances, under Australian Family Law. If you wish that not to be the case, by all means campaign for that.

Should we try to divorce, as you appear to insist that we should do, there are certain difficulties there.

First, you'd force us to separate for a year, and be able to provide evidence that over that period, we didn't do each other's laundry, didn't share meals, that our financial arrangements were separate (so no paying for take-away fish and chips on a Friday unless on separate bills).

Then we'd have to perjure ourselves, and swear under oath - and persuade others to affirm, also under oath - that the relationship had broken down irretrievably.

So to please you, we'd have to commit a serious crime, and get others to join us in that crime.

But there's one thing even more crucial.

Our son wants us to stay together.

I look forward to your advice on how we should behave in order to cater to your beliefs under these circumstances.

Oh and Anne? Genesis 1:28