One component of the Southern Poverty Law Center’s (SPLC) decision to list the legal powerhouse organization Alliance Defending Freedom (ADF) as an anti-LGBT hate group is the substance of their work abroad, which has recently included defending — albeit unsuccessfully — European laws requiring the sterilization of transgender citizens seeking administrative recognition of their preferred gender.
Changing the name or gender on a government-issued document like a driver’s license has long included a frightening step for transgender people in almost two dozen European countries: mandatory sterilization.
But those days may be coming to an end. Gay and transgender activists in Europe have argued for years that the sterilization requirement was an institutionalized violation of human rights, and last week the European Court of Human Rights agreed.
On April 6, it issued a ruling in favor of three transgender people in France who had been barred from changing the names and genders on their birth certificates because they had not been sterilized. In so doing, activists said, the court set a new legal standard that calls for changes to laws in...countries under its jurisdiction.
LGBT advocates and activists celebrated the ruling across Europe. The French law that had been challenged was scrapped in October 2016 while the case was before the international court, but it had stood for decades.
These laws came out of an earlier period when the medical and psychological fields had only just started to grapple with the rights of transgender people. The French sterilization law was the result of a 1990 ECtHR decision (based on a 1982 petition) that ruled the state must provide proper identification for transgender citizens. In response, the state created a system “whereby the change of gender on documents was only available to trans people who went through a very specific medical setting, leading to genital surgery and sterilization."
A 2011 Human Rights Watch report on a sterilization law in the Netherlands described a similar evolution and the "drastic nature" of the requirement:
In 1985, the Netherlands was among the first European nations to adopt legislation granting transgender people — individuals whose gender identity differs from the sex assigned them at birth — legal recognition of their gender identity, albeit under onerous legal conditions.
Most egregiously, Dutch law allows trans people to change their gender on official documents only on condition that they have altered their bodies through hormones and surgery, and that they are permanently and irreversibly infertile...
This second requirement is often referred to as the “sterilization requirement,” but this label does not in fact quite capture the drastic nature of the requirement: ordinary sterilization techniques used for family planning purposes do not suffice, since in principle these are reversible. Hormone treatment alone is also insufficient: while it often leads to infertility, it does not necessarily result in permanent and irreversible infertility. In practice what is required is the removal of the ovaries (trans men) or testes (trans women), unless there are, for example, pre-existing medical conditions that have resulted in permanent infertility.
In 2013, the Netherlands repealed the law.
The April 2017 decision in A.P., Garçon and Nicot v. France was thus no small feat for LGBT activists and their allies. While the court lacks a strong enforcement mechanism, the ruling sets a new legal guideline for all 47 countries party to the European Convention on Human Rights (ECHR), including 20 that still have sterilization laws on the books.
But back on July 1, 2015, ADF International filed an intervention (similar to an amicus brief in U.S. courts) in the ECtHR arguing that the court should not decide in favor of the petitioners. Instead, ADF International attorneys Roger Kiska and Robert Clarke argued, much like their colleagues in the context of the U.S., that anti-discrimination protections and rights to privacy outlined in the ECHR do not extend to the LGBT community and, in this case specifically, transgender Europeans (Kiska is now with the London-based Christian Legal Centre).
In the intervention brief, Kiska and Clarke warned against “human rights imperialism,” a contested term used primarily in the context of Western efforts in Africa and Asia (as opposed to the ECtHR in which each European country is a member and plays a role in seating judges), and argued that the court should afford a wide “margin of appreciation” — an ECtHR doctrine that seeks to balance political and social realities across Europe in its rulings — in this case.
But they also went further, arguing, “equal dignity does not mean that every sexual orientation warrants equal respect.” And by applying the “margin of appreciation” doctrine, they argued that European member states should have the right to determine what sorts of medical treatments and diagnoses they require of transgender citizens seeking new documentation, including sterilization, the truly invasive and destructive aspect of which was never mentioned:
With such divisive medical and psychological debates taking place over the nature of the treatment and diagnosis of transgenderism, it would be wholly inappropriate for this Court to make a decisive pronouncement which would strip member states of their role in determining the most proportionate and appropriate means of promoting public order, public health and morals under Article 8 of the Convention.
To support this argument, ADF referenced a case before the ECtHR from the 1970s, and used the World Health Organization’s (WHO) terminology of “transsexualism” and “gender identity disorder,” categorizations slated to be updated in 2018. The ADF intervention also cited the work of longtime anti-trans psychiatrist Dr. Paul McHugh, the former psychiatry chair at Johns Hopkins University.
McHugh is repeatedly cited by the anti-LGBT right as an authority on LGBT —especially transgender — issues. He has called being transgender a mental illness and suggested it be treated like anorexia nervosa, and claimed that prominent transgender celebrity Caitlyn Jenner suffers from “autogynephilia,” an idea that suggests transwomen are men who are sexually aroused by the image of themselves as women.
While the ADF was happy to cite outdated WHO definitions in its intervention, it ignored a more relevant statement from the organization. In 2014, a year before the ADF’s intervention in A.P., Garçon and Nicot v. France, WHO published an interagency statement with the Office of the High Commissioner for Human Rights (OHCHR), the United Nations Children’s Fund and others titled “Eliminating Forced, Coercive and Otherwise Involuntary Sterilization.” The statement explicitly urges states to “ensure that sterilization, or procedures resulting in infertility, is not a prerequisite for legal recognition of preferred sex/gender.” The statement summarizes:
Discrimination on the basis of gender identity has been recognized by international human rights bodies as a human rights violation. Human rights bodies have condemned the serious human rights violations to which transgender and intersex persons are subjected and have recommended that transgender and intersex persons should be able to access health services, including contraceptive services such as sterilization, on the same basis as others: free from coercion, discrimination and violence. They have also recommended the revision of laws to remove any requirements for compulsory sterilization of transgender persons.
Even earlier, in 2009, the OHCHR released an issue paper titled Human Rights and Gender Identity, which also explicitly recommends that member states, “abolish sterilisation and other compulsory medical treatment as a necessary legal requirement to recognise a person’s gender identity in laws regulating the process for name and sex change,” and that “access to procedures to change one’s sex and one’s first name in identity documents is vital for a transgender person to live in accordance with one’s preferred gender identity.”
The report further states, “It is of great concern that transgender people appear to be the only group in Europe subject to legally prescribed, state-enforced sterilization."
ADF’s intervention in A.P., Garçon and Nicot v. France also came after two other rulings in Germany (2011) and Sweden (2012) that did away with sterilization requirements and a report (2013) by the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that called on nations to:
[R]epeal any law allowing intrusive and irreversible treatments, including forced genital-normalizing surgery, involuntary sterilization, unethical experimentation, medical display, “reparative therapies” or “conversion therapies,” when enforced or administered without the free and informed consent of the person concerned. He also calls upon them to outlaw forced or coerced sterilization in all circumstances and provide special protection to individuals belonging to marginalized groups.
In addition to the very real violence that is inherent in forced sterilizations, the barrier to accessing proper identification increases the likelihood of violence in situations where the documentation contradicts a transgender person’s appearance. The connection between state-sanctioned discrimination and harassment and violence directed at the targeted minority by both law enforcement and private parties is well-documented. This is the situation transgender activists have been somewhat successful in addressing, and one ADF International intervened to uphold.
In the U.S., while some states still require proof of gender-reassignment surgery for changing identification documents, since 2010, the trend has been to relax those requirements, particularly at the federal level. In 2014, the American Medical Association recommended that states drop the requirement.
Despite myriad misconceptions about transgender people[i], many people who identify as transgender do not seek medical interventions to confirm their identity. These laws then required a needless medical intervention, enforced by the state, that would forever remove the possibility of starting a family, just to obtain revised documents used in every facet of life.
In 2012, the first president of ADF, Alan Sears, who stepped down in January 2017, delivered remarks before the anti-LGBT international gathering of the World Congress of Families in Madrid. ADF was known as the Alliance Defense Fund then, and WCF currently is listed as an anti-LGBT hate group by the SPLC. At that gathering, in a plenary session titled “The Homosexual Agenda,” Sears described ADF’s mission in apocalyptic terms:
And in the course of the now hundreds of cases the Alliance Defense Fund has now fought involving this homosexual agenda, one thing is certain: there is no room for compromise with those who would call evil ‘good.’
ADF International has offices in Vienna, Geneva, Brussels and Mexico City and boasts an international training program called Areté Academy, which provides the “next generation of leaders throughout the world” with an all-expenses-paid training that “combines biblical worldview training with specialized professional development.” Referred to as “Delegates,” Areté alumni go on to careers in law, politics, medicine, business, foreign affairs, economics, academic, intelligence and national security.
It is in this combination of where, when and how ADF International intervenes around the world, seeking to ensure a second class status for the LGBT community, and the extreme statements of its leadership like Sears’ remarks about the “evil” “homosexual agenda,” that the SPLC arrived at its designation.
While ADF stridently opposes the advancement of LGBT rights everywhere under the banner of “religious liberty,” the ADF has more latitude in its advocacy in South and Central America, as we’ve previously reported regarding their work fighting the decriminalization of gay sex in Belize (which ultimately failed). ADF’s international work provides a window into what the organization would like to achieve in the U.S.
Following the April ECtHR ruling, European activists are still fighting for further recognition and protections, as Richard Köhler of Transgender Europe told The Times:
The court followed its previous arguments that trans issues are medical issues and decided it was in line with European standard of human rights to request a medical exam and a mental health diagnosis. We think the next frontier is to get trans people and trans issues outside the medical framework because no gender identity is pathological or can be determined by someone else except for the person concerned.
Their work and the work of other civil rights organizations, both in the U.S. and abroad, can count on opposition from the Alliance Defending Freedom, no matter how coercive or disparaging of the LGBT community the laws in question may be.
[i] There are many misconceptions about transgender people and identity. In one discussion, Forced Sterilization and Mandatory Divorce: How a Majority of Council of Europe Member States’ Laws Regarding Gender Identity Violate the Internationally and Regionally Established Human Rights of Trans* People, Rebecca Lee provides a clear overview:
The term “transgender” is “generally used to refer to individuals whose gender identity or expression does not conform to the social expectations for their assigned sex at birth.” By contrast, people whose gender identity corresponds with the sex they were assigned at birth are referred to as “cisgender.” The trans* community represents a small but meaningful proportion of the population: one recent study, for example, suggests that as many as 1 in every 250 people in the United States (or 0.4% of the population) may be trans*. Although statistics regarding the prevalence of trans* people in [Council of Europe] countries are limited, existing data suggest that the United States estimate of 1 in every 250 persons is likely an accurate reflection of the prevalence of trans* people in other communities.
The transition process usually includes a social transition, which primarily involves altering one’s external gender expression to conform to one’s gender identity, including changing one’s hairstyle, makeup, accessories, and clothing. Transition may or may not also include taking hormones and/or undergoing gender-confirming surgery, either on one’s secondary sex characteristics or on one’s external and/or internal genitalia.
Despite society’s misconceptions about the subject, “there is no such thing as a ‘sex change’ surgery or a ‘sex reassignment surgery’ that … [can convert] a woman into a man or a man into a woman.” In reality, there are a series of potential surgical interventions that trans* people may elect to undergo so that their external appearance conforms more closely to their gender identity.
Though a significant number of trans* people do undergo or hope to undergo such surgeries, many trans* people do not wish to have surgery. Other trans* individuals are unable to access gender-confirming surgeries due to a lack of resources or because of medical conditions that contraindicate such surgeries. In fact, “the vast majority of trans people do not undergo surgery” at all. Moreover, even those trans* people who do desire some gender- confirming surgery may not wish to or are not able to undergo the complicated, expensive, and potentially dangerous procedures that would be required to leave them irreversibly sterilized. Indeed, even those trans* people who do desire some form of genital gender-confirming surgery may still wish to preserve their ability to procreate biologically, or they may prefer to make the decision on their own terms, rather than at the insistence of the government.
Trans* is an umbrella term … [that] includes identity categories such as transgender, transsexual, gender-variant, genderqueer and sometimes intersex (if the intersex person so identifies). Some people who identify as transsexual object to being called transgender, and vice-versa, so trans* is a more inclusive term that is gaining favor in some activist communities.
Photo credit: REUTERS/Gonzalo Fuentes