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When laws fail to protect trans people, harmful medicalized norms creep in

Laws Protect From Harmful Medicalized Norms

"Medical intervention for trans people, like all others, should be undertaken based on individual informed consent," writes Kyle Knight, co-interim director of Human Rights Watch's LGBT Rights Program.

Earlier this year, Germany became the world's latest country to pass a clear law that allows transgender people to change their legal gender to reflect their identity based on self-declaration. Several other countries are staggering toward this goal; in some, policies allow self-identification for some documents and not others. But the majority of the world's governments still either disallow changes in legal gender recognition altogether, or have laws that require trans people to undergo medical intervention to access their rights.

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Such policy environments fail to benefit transgender people or the government. Instead, it reflects a default to medical authority, perpetuating outdated and discriminatory practices.

Policymakers should recognize and address the harmful consequences of medicalized gender transition procedures. While medical intervention is essential for some individuals, it should not serve as a prerequisite for legal gender change. Laws and procedures should clearly separate legal recognition from medical requirements, ensuring that people can assert their gender identity without undue barriers or intrusions into their privacy and dignity.

Most laws that currently require medical intervention and verifications are decades old. But there is also contemporary creep. The current debates raging—in particular in the UK and the US—over trans youth health care demonstrate how fearmongering over the evidence-based interventions trans people want can reinforce harmful pathologizing ideas. In other contexts where legal progress seems promising, the lack of genuine de-pathologization through legal protections has allowed harmful medical norms to creep in and cause problems.

One such setting is Nepal. Following a 2007 Supreme Court order, authorities have been issuing some documents listing gender as "other" or "third gender" for over a decade based on the person's self-declaration. Despite the court order, the lack of a clear central policy, plus confusion and ambiguity around implementing the court's standard of "self-feeling," creates problems. Trans people in Nepal today who want to change their gender markers to "female" or "male" are typically forced to undergo surgery, which requires traveling outside the country, and then in-country medical assessments, including invasive examinations of post-operative genitals. "The government, when confused and under pressure, just defaults to medicalization because it's perceived as neutral and prestigious," a trans woman in Kathmandu told me. "And if a doctor says I'm a woman, then the state can just shrug."

The reliance on regressive medical norms adds unnecessary burdens and risks during crises. In Ukraine, legal gender recognition requires people who wish to change their legal gender to obtain, among other criteria, a diagnosis of "transsexualism" despite the term being removed from international diagnostic manuals years ago. To get the diagnosis, transgender people must undergo a two-year outpatient psychiatric evaluation. However, in 2022, Russia's full-scale invasion led to martial law, under which all men of military age — between 18 and 64 — are barred from leaving the country. This posed a range of challenges, though mainly for trans women who were either in the middle of the lengthy medicalized process or who had opted to not undergo the assessments.

They found themselves still legally male and stuck in a war zone. Activist groups, particularly those run by lesbians, became vital sources of support for Ukrainian trans women to cross in and out of Ukraine from neighboring countries freely. They helped them get assessed based on the medical requirements, obtain a diagnosis, and then undergo an often-humiliating confirmation at a Military Medical Commission, which would allow them to cross the border to safety. "The Military Medical Commission is open 8 a.m.-8 p.m.; there is at any time 1,000 or more people there waiting," explained a Ukrainian activist, now working in Slovakia, who helped trans people exit the country. "And then the room where you get checked is very intimidating – military men doubting you and questioning you."

In both Nepal and Ukraine, incomplete legal reforms left behind a murky medicalization of legal gender recognition. Medical intervention for trans people, like all others, should be undertaken based on individual informed consent. None of the medical interventions associated with transitioning should be prerequisites for legal gender change, and laws play an essential role in making this separation clear. Without that clarity, medical requirements are unfairly used as validation tools.

As the cases of Nepal and Ukraine show, de-pathologizing legal processes for trans people is a critical, lifesaving step. It requires sturdy and comprehensive legal protections to prevent medicalized harm from creeping back in.

Kyle Knight is Interim Co-Director of the LGBT Rights Program at Human Rights Watch.

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