How do laws around the world set out how trans and gender-diverse people can change their sex/gender marker and names on official identity documents? And which laws are in place worldwide that criminalise trans identities?
Released in September 2020, the Trans Legal Mapping Report details the situation in 143 UN member States, In this episode of Making Rainbow Waves, the new podcast by ILGA World, we met with Julia Ehrt and Zhan Chiam to explore the findings of the publication, and to discuss what's next for the trans human rights movement.
Click here to read the episode's transcription
Making Rainbow Waves is a podcast by ILGA World, telling the stories and raising the voices of LGBTI human rights defenders worldwide.
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Making Rainbow Waves 1x01: How laws and policies impact on trans persons' lives
Transcription by Maddalena Tomassini
[00:08] Making Rainbow Waves, a podcast by ILGA World.
[00:19] Welcome everybody to Making Rainbow Waves, a podcast by ILGA World telling the stories and raising the voices of LGBTI human rights defenders worldwide.
[00:28] My name is Daniela Paletta, and this week we’re going to talk about a report detailing the impact of laws and policies on trans persons across the globe.
[00:45] The Trans Legal Mapping Report is the latest publication released by us at ILGA World, and I’m here today with two colleagues of mine, Julia Ehrt, who is the Director of Programs at ILGA World, and with Zhan Chiam, who has led the Gender Identity and Gender Expression program for five years and has also been the author of all the editions of the Trans Legal Mapping Report that we have released so far.
[01:10] So welcome, Julia and Zhan
[01:14] Hello, thank you
[01:15] Thank you, Daniele
[01:16] OK, so let’s start a conversation today. We have just released the Trans Legal Mapping Report. So first of all, congratulations to you. And yeah, can you just tell us what the report is about and how it’s structured?
[01:32] So, I guess that’s for me. So, the Trans Legal Mapping Report: we have been doing it since 2016 and this is the third edition. The first two editions in 2016 and 2017 were only covering legal gender recognition processes for trans people around the world.
[01:54] So, legal gender recognition: we interpret that as meaning a person’s ability to change their name or their gender markers in laws or policies or administrative processes.
[02:07] And then in this edition, we decided to add a new chapter which we called “criminalisation”. So, in some of the countries, you’ll see the possibility for the person to change the name or gender marker or not, and then you'll see after that a chapter on how criminal laws are used against trans people in that country.
[02:29] For criminal laws, we have divided them into two parts: one part is direct criminalisation and the other part is indirect criminalisation. The direct criminalisation we called it de jure criminalisation, and indirect criminalisation is called de facto.
[02:46] In a way you can say that maybe the impact of the laws might not be that different on the lives of trans people.
[02:55] So there are 13 countries where trans people are directly criminalised, which means that - in either a piece of legislation or in a religious law of the country - it says that a person... for example, it will say something like a man is not allowed to wear women's clothes or something like that, and those are de jure criminalisation. So we say that there's actually a law that actually targets someone's gender identity or gender expression.
[03:27] And then, on the opposite side, you have what we have called de facto criminalising examples, which means that they are basically where we have found evidence of the police or the authorities using laws that on the face of it don't target trans people but have used those laws to target trans people. So, those laws could be most relating to sex work, vagrancy, loitering, drug laws, nuisance... any range of laws that we have received examples of how they are used to target trans people.
[04:00] I see. So, basically, there's a very wide range of laws that can be used. I guess the effect for people on the ground is really that they can be constantly targeted and they probably don't even know where the legal official threat is coming from and what form will take, is that correct?
[04:20] Yeah, exactly. I think what we were trying to show with this report was systemic oppression of trans people, and how the criminal system is used to control people's gender expressions and also to control people's gender identities.
[04:35] For example, if you look at the examples that were recorded, it's not in the countries where there was actual... so it's not in those 13 countries where they were actually criminalising trans people specifically that the most number of instances took place. So it was in other countries as well, where there were de facto laws that were used against trans people where there were also lots of human rights abuses and discrimination against people.
[05:03] What I find particularly interesting about this report is that it is a combination of desk-based research - the research on laws and books - but it also collects the experience of lots of trans activists and trans people on the ground to see how actually these laws impact them.
[05:22] How did you work on that research? How did you get in touch with all these people?
[05:28] Yes, we were a team of a group of different researchers, so some people worked just on one region and some people worked across a couple of regions. Some of the researchers worked only on criminalisation and some worked only on legal gender recognition.
The ones who worked on criminalisation really had to make contact with activists on the ground to double-check the information and to get the examples. We also used, you know, very useful resources like Human Rights Watch's reports, the Human Dignity Trust's report last year on trans criminalisation. So these also formed a kind of blueprint for us to start our different research in different regions.
[06:11] Yeah, it definitely did rely a lot on people making contact with activists in different countries. The Latin American researcher, Mati, is really well connected in her region and so you can just get a sense of that, for example, in the footnotes: for Latin America, there's so many different organizations and activists that are listed there. And same for the African researcher, Nigel, so they collected and were in contact with a lot of activists in the continent.
[06:45] The report talks not only about criminalisation of trans persons but also about legal gender recognition. We asked Zhan what is the situation right now around the world and whether there had been countries in the past years with significant advances had been seen in this regard.
[07:03] The report does list a number of countries that have advanced. So, by advance we mean either finally allowing a legal gender recognition process in their country or making the process less discriminatory or have fewer obstacles for people.
[07:19] For more states in Australia, that's been possible. In Belgium, Brazil, Chile, Costa Rica, France, Greece, and Luxembourg there have been advances. In Pakistan and also hopefully finally in Vietnam.
[07:37] Even if laws are positive and progressive on paper, however, the lived reality for trans people on the ground can be way different.
[07:50] I think that positive laws in very many cases do have a positive impact on the lives of trans persons. However, the absence of positive laws does not necessarily have, meaning that this state is a bad state for trans persons to live in.
[08:07] So usually, in most states in which laws are introduced to either protect or recognize trans persons, that will have a positive effect on the lives of trans persons. Of course, not on the life of every trans person. Then there's of course as well a lot of intersectional discrimination on the trans community, so not everyone within the community will benefit to the same extent from a positive law.
[08:30] But in general, I think the positive law introduced in the state will have a positive effect.
[08:35] The way how this record was conducted, in particular when it comes to criminalisation, shows both the big strength of this report but as well its limitations.
[08:45] The report, as Zhan has said, is very strongly informed by the trans community in the various states or in the various regions that the research was conducted. But when it comes to criminalisation, in particular when we look at the de facto criminalisation, the report relies on reports of cases from the community and which is, of course, the way how de facto criminalisation needs to be researched.
[09:13] The limitation of that is of course that only because we have not found a case in a specific country, it does not mean that in this country there is no de facto criminalisation: it just means that we did not find the case.
[09:27] It's very difficult to say “these are the states that have de facto criminalisation”, and “these are the states that do not have de facto criminalisation” because it's about finding cases. And there might be cases, and in fact very likely there are many cases which this research was not able to unearth.
[09:45] I do agree with that. I think it was a methodological conundrum for us. Because even though we really wanted to cover criminalisation as the next area for this report, the very nature of the way that you collected, like Julia said, you know, is: you have to go through the evidence first before you find the law, If you think of it that way.
[10:07] And it's just so time-consuming if you really wanted to do, you know, every single country in the world, or as many as you could. It would take a very, very long time, or a very big team to actually be able to do it.
[10:24] So this was a bit of an ethical dilemma in a way. We knew we wanted to cover it, but we knew that we couldn't cover as much as we wanted to.
[10:36 Musical interlude]
[10:48] The debate about legal gender recognition has been really, really heated, especially in the past few years and especially in a few countries. And it almost seems like whenever there has been a discussion on legal gender recognition, the hostility against the trans community has advanced in equal ways.
[11:07] I asked Julia and Zhan if this is something that they have witnessed as well, and why do they think this is happening.
[11:06] So, I think there's some obvious countries when there has been a very public anti-trans rhetoric and so if this has impacted on legal gender recognition processes, or there's been a legal recognition process and the anti-trans rhetoric has come in and made it more difficult to advance.
[11:37] So like in the UK, for the Gender Recognition Act that process has stalled. For New Zealand, they weren't able to advance their birth certificate change process and... you know, those had been definitely the result of anti-trans lobbying.
[11:59] But then, there are also countries in which, mysteriously, things have just gone backwards. So: in Mongolia and Kazakhstan the age of consent for trans people has gone up. The requirements have become more onerous, and then Japan had a Court decision that confirmed the sterilization requirement for people.
[12:29] So, on the face of it, and in talking to activists from those countries, it's not the result. But there's no seeming connection with any kind of obvious anti-trans agenda, but you really have to wonder what actually means when it is quite obvious in different regions of the world that there is quite a public anti-trans debate. So, yeah, I don't really understand.
[12:56] I'm hoping that the report can kind of bring this to people's attention and, you know, those who are interested to investigate a bit further about the trends can be motivated to do so.
[13:08] Yeah, maybe I can add to that. Do we see a backlash in states that have introduced good trans legislation, particularly legal gender recognition? I think there is, as Zhan as well explained, but I think there's another reason why we see trans-related backlash which has nothing to do with introducing legal gender recognition or trans legislation, but it has more to do with the fact that anti-rights actors and right-wing and conservative actors are using trans issues in order to attack gender equality.
[13:40] So in a certain way, those opponents of ours are weaponizing trans issues in order to make political gains. Because the trans community is very small: we struggle to defend ourselves from these arguments and it's very effective because these arguments that are using an anti-trans narrative connect easily to a rather conservative and right-wing mainstream.
[14:06] That has proven an effective strategy to attack gender equality, so it doesn't necessarily have to do much with attacking trans rights. It's more about finding ways to take down the gains of the women's movement, in a certain way, by using anti-trans arguments.
[14:26] And that's what we see in Latin America. That's what we see in Eastern Europe. But I think there's a dimension of that in states like the UK and New Zealand as well.
[14:35] Right, and so would like in countries like, for example, in Poland where - again it's LGBTI, so it's not trans-specific - this narrative is that being LGBTI is being against the Polish state or cultural identity. So yeah, like Julia said, it's a convenient way of invoking a certain ideology, which is really sad.
[15:06] This narrative is really pervasive. So the question is: how can our communities fight back and more broadly, what's next for trans rights? How is the movement going to work from now on?
[15:19] I was saying something positive now. Because, I mean: despite what we just said about backlash and the way how anti-trans arguments are used, I still think that the general movement of development when it comes to trans rights and when it comes to the quality of life of trans people globally on average is positive. So we do still see a lot of progress, and I would say over the last decade trans rights have made a lot of progress in many many states around the world.
[15:50] However, I will as well say that trans rights started on a very, very - you know - low level. So the bar for making progress was very low as well. I mean, there's still a long way to go.
[16:02] I do think there is still a momentum for positive legislation in regards to legal gender recognition, and we've just seen the announcement of India to introduce legal gender recognition based on self-identification. We don't know yet whether this will be as good as it sounds at the moment, but that remains to be seen. However, there still is positive progress.
[16:27] Of course, legal gender recognition is not the only - by far not the only - area where progress needs to be made, and there's still a question of the impact of the reform of the ICD-11, i.e. the depathologisation of trans people globally and that has been in a certain way stalled a little bit with the COVID-19 crisis.
[16:48] That's at least our analysis, and clearly, there's insufficient protection from violence across the board which still needs to be addressed by our communities and by legislators.
[17:00] And then finally, coming to the backlash question. I think the way to attack the backlash and the anti-trans narratives is by forming alliances. Alliances with the women's movement and alliances with the broader human rights movement.
[17:15] Because I don't think that neither the trans community nor the wide LGBTI community stands a chance in counter-narrating these narratives alone.
[17:25] Yeah, I mean, that was the first thing that I thought about as well, which is an actual real cross-movement dialogue and coalition. I think that a lot of the movements just don't understand each other. And really, people don't know each other: people don't know what each other is working on, which is a shame.
[17:44] So we need to get better at that. I think a lot of LGBTI activists get very siloed within LGBTI work and don't look further out, which is another shame. For me, that would be the first step in what we can do in the next two to five years. And then also, you know, making sure that we strengthen the mechanisms that we have.
[18:07] So: the regional and international mechanisms to make sure that they stay informed and that they are protected and that they can continue to do their work. Continue to give them access to the issues.
[18:24] So I think that is also very important and also to make sure that we don't let things slip. So, for example, in the countries that I mentioned: (we need to) work out what the strategy is and whether it's worth getting back the rights that people had before.
[18:40 Musical interlude]
[18:51] To conclude our conversation I asked Zhan about ILGA World's Gender Identity and Gender Expression program which he has led for five years. What is the best memory of the work that he has done?
[19:04] You know, I think this report is actually a really nice memory. I mean, it's not a memory: it's a real thing! But I think, you know... at the time when I was asked to do it I just thought "Oh no, this is gonna take up half of my life". But in the end, it's turned out to be very satisfying.
[19:21] And meeting the researchers that I was lucky enough to find and to work with has been a lot of fun, actually. I learnt about the situation in different parts of the world, and to be actually able to compile it in a way that is hopefully coherent has brought me a lot of joy. Also, since this is about research, I think... yeah, it would be really nice to see where it can go after this, what other kinds of research it can inform and how it can be used as more of a life tool. So that's not a memory, but it's a hope for this report: that it becomes an alive, interactive, regularly updated resource. I hope that is useful.
Thank you so much for being with us today and guiding through the Trans Legal Mapping Report. It can be downloaded on our website, ilga.org, so please go there, download it, and share with the world. We really hope it's going to be useful for trans and LGBTI advocacy all over the world. So use it, and let us know what you think about it. Thanks again for following. Bye!
[20:29] Thank you, bye-bye.
[20:32] Making Rainbow Waves is a podcast by ILGA World. This episode was hosted and edited by Daniele Paletta. You can find every episode on all streaming platforms or on ilga.org. Thanks for listening.