An Essential Legal Right for Trans People

Everyone has the right to recognition under the law.

When identifying documents don’t reflect the gender that a trans person lives—one's affirmed gender—these documents are often rejected as proof of identity. This prevents trans people from participating in fundamental aspects of daily life like enrolling in school, accessing health care, getting a job, opening a bank account, travelling, or voting.

At the same time, incorrect identification can lead to being “outed” as trans—resulting in discrimination and abuse, or the distress of having one’s affirmed gender rejected.

What does the word “trans” mean?

Trans refers to the range of people who do not identify with the sex they were assigned at birth. It can encompass terms like transgender, transsexual, transvestite, genderqueer, two-spirit—anyone who does not conform to male or female norms.  

What is legal gender recognition, and why does it matter?

Throughout the world, all official forms of identification—like birth certificates, passports, national ID cards, and driver’s licenses—reflect the sex we are assigned at birth unless they are amended.

Legal gender recognition is government acknowledgement of the gender a person lives as well as their chosen name, reflected in identifying documents. These state-issued documents are often needed in order to update nongovernmental documents, including bank records and educational certificates.

What prevents people from changing these documents?

The vast majority of trans people around the world cannot obtain official documents that match their gender identity or chosen name because there is no clear legal process for them to do so in their countries.

For the few who can, the process for officially changing their sex and name often includes unconscionable and unnecessary requirements. These can include:

  • psychiatric diagnosis or confinement;
  • treatments like hormone therapy, forced sterilization, or sex reassignment surgery;
  • divorce, if one is in an opposite-sex marriage;
  • the requirement that one be childless. 

These processes are often overly complicated, expensive, slow, or subject to individual decisions by state employees rather than clear and transparent rules.

What’s wrong with requiring medical diagnosis or treatment before making gender change official?

Everyone should be able to access health care freely to improve their well being—not because they must do so simply to be acknowledged for who they are. While some trans people choose to seek medical treatments like hormonal therapy, counseling, and gender-affirming surgeries that assist them in transitioning from one gender to another, others do not wish to receive them.

Requiring that a person be medically diagnosed as “transgender” or as having “gender identity disorder,” or that they submit to medical treatments before they can change their official documents, improperly makes health professionals the gatekeepers of fundamental rights. This can create power imbalances between patient and provider, making it more difficult for trans people to access health care that is suitable and appropriate to their individual needs.

How do the Open Society Foundations promote equal legal recognition for trans people?

Trans activists and allies in every region of the world are advocating for their rights by introducing or changing national laws or regulations. The Open Society Foundations provide financial support to trans-led or LGBT organizations that promote progressive, rights-based processes for legal gender recognition.  

These include the following:

  • Transgender Europe, an umbrella network of European trans organizations, which aims to educate decision-makers and the public on the impact that legal gender recognition has on the daily lives of trans people;
  • Transgender Education & Advocacy, a Kenyan organization that is pressing courts to allow name and gender change on passports, national ID cards, and academic certificates;
  • Transgender Equality Network Ireland, which is calling on the Irish government for progressive national laws on gender recognition;
  • Insight, a Ukrainian organization that engages with ministerial bodies, the Office of the Ombudsman, and other civil society allies to reform the draconian process for changing name and gender, which includes 30-45 days of psychiatric confinement;
  • strategic litigation at the European Court of Human Rights by a range of regional and national civil society organizations—including Interights, the Croatian LBT group Kontra, and the Macedonian Coalition on Sexual and Health Rights of Marginalized Communities—to raise the obligations of European states to provide rights-based legal gender recognition processes under the European Convention on Human Rights.