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The pathologisation of trans* persons in the ECtHR's case law on legal gender recognition

Pieter Cannoot (UGent)
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Abstract
The European Court of Human Rights is the human rights monitoring body that has dealt with the largest number of cases related to gender identity and trans* persons. In this regard, it has recognised under Article 8 ECHR both a right to gender self-determination and a positive obligation for the State to adopt a procedure for legal gender recognition. However, Contracting States were given a wide margin of appreciation to set conditions for the legal recognition of a person's actual gender identity, leading to the acceptance by the Strasbourg Court of pathologising requirements such as a diagnosis of gender dysphoria and compulsory sex reassignment surgery. This contribution analyses and conceptually explains this message of trans* pathologisation in the ECtHR's case law. Subsequently, on a normative level, it argues that this case law cannot be upheld taking into account the international trend towards full trans* depathologisation, and the scope of the margin of appreciation that States (ought to) have in cases concerning gender identity.
Keywords
European Court of Human Rights, trans* persons, gender nonconformity, pathologisation, gender self-determination, DEPATHOLOGISATION, PREVALENCE

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MLA
Cannoot, Pieter. “The Pathologisation of Trans* Persons in the ECtHR’s Case Law on Legal Gender Recognition.” NETHERLANDS QUARTERLY OF HUMAN RIGHTS, vol. 37, no. 1, 2019, pp. 14–35, doi:10.1177/0924051918820984.
APA
Cannoot, P. (2019). The pathologisation of trans* persons in the ECtHR’s case law on legal gender recognition. NETHERLANDS QUARTERLY OF HUMAN RIGHTS, 37(1), 14–35. https://doi.org/10.1177/0924051918820984
Chicago author-date
Cannoot, Pieter. 2019. “The Pathologisation of Trans* Persons in the ECtHR’s Case Law on Legal Gender Recognition.” NETHERLANDS QUARTERLY OF HUMAN RIGHTS 37 (1): 14–35. https://doi.org/10.1177/0924051918820984.
Chicago author-date (all authors)
Cannoot, Pieter. 2019. “The Pathologisation of Trans* Persons in the ECtHR’s Case Law on Legal Gender Recognition.” NETHERLANDS QUARTERLY OF HUMAN RIGHTS 37 (1): 14–35. doi:10.1177/0924051918820984.
Vancouver
1.
Cannoot P. The pathologisation of trans* persons in the ECtHR’s case law on legal gender recognition. NETHERLANDS QUARTERLY OF HUMAN RIGHTS. 2019;37(1):14–35.
IEEE
[1]
P. Cannoot, “The pathologisation of trans* persons in the ECtHR’s case law on legal gender recognition,” NETHERLANDS QUARTERLY OF HUMAN RIGHTS, vol. 37, no. 1, pp. 14–35, 2019.
@article{8586242,
  abstract     = {{The European Court of Human Rights is the human rights monitoring body that has dealt with the largest number of cases related to gender identity and trans* persons. In this regard, it has recognised under Article 8 ECHR both a right to gender self-determination and a positive obligation for the State to adopt a procedure for legal gender recognition. However, Contracting States were given a wide margin of appreciation to set conditions for the legal recognition of a person's actual gender identity, leading to the acceptance by the Strasbourg Court of pathologising requirements such as a diagnosis of gender dysphoria and compulsory sex reassignment surgery. This contribution analyses and conceptually explains this message of trans* pathologisation in the ECtHR's case law. Subsequently, on a normative level, it argues that this case law cannot be upheld taking into account the international trend towards full trans* depathologisation, and the scope of the margin of appreciation that States (ought to) have in cases concerning gender identity.}},
  author       = {{Cannoot, Pieter}},
  issn         = {{0924-0519}},
  journal      = {{NETHERLANDS QUARTERLY OF HUMAN RIGHTS}},
  keywords     = {{European Court of Human Rights,trans* persons,gender nonconformity,pathologisation,gender self-determination,DEPATHOLOGISATION,PREVALENCE}},
  language     = {{eng}},
  number       = {{1}},
  pages        = {{14--35}},
  title        = {{The pathologisation of trans* persons in the ECtHR's case law on legal gender recognition}},
  url          = {{http://doi.org/10.1177/0924051918820984}},
  volume       = {{37}},
  year         = {{2019}},
}

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