Gender discrimination Under this will put several point that sir has given.

In newspapers or magazines (print medium) mostly seems to be not writing about transgender

Who has given us rights to take away someones right to study, to earn bread!
Protections for Transgender Employees By Jennifer Levi Normal, a recent HBO movie, features a transgender protagonist named Roy who endures decades of personal torment before finally telling her wife, her employer, her church, her children, and eventually her coworkers what she has known for years: that she has a female gender identity and intends to undergo medical care and treatment to transition from male to female. Sadly, the harassment that Roy later endures from coworkers is, like the movie's title, quite "normal." Many transgender employees routinely face demotions, unfavorable conditions of employment, and even discriminatory terminations-due not to job-related problems but to employers' discomfort with and animus against transgender people. Express Protections A growing number of jurisdictions specifically include transgender people in antidiscrimination laws by prohibiting discrimination on the basis of gender identity and expression, or by including language similarly intended to prohibit discrimination against the broad range of people who do not conform to stereotypes of how a "real" man or woman should look or act. Three states-Minnesota, Rhode Island, and most recently New Mexico-include transgender people explicitly in their employment antidiscrimination laws. Protections are even broader at the local level. As of January 2003, more than fifty cities and towns had passed trans-inclusive antidiscrimination ordinances-areas as diverse as Boston; Louisville, Kentucky; New York City; and Ypsilanti, Michigan. (An updated list of locations with such protections is maintained at www.transgenderlaw. org.) Sex Discrimination Protections In addition to these explicit protections, transgender people sometimes find protection in sex discrimination provisions. Logically, protection under existing sex discrimination laws seems the most straightforward-hostile treatment in the workplace because a person decides to transition from one sex to another or fails to conform to stereotypical gender expectations can hardly be the result of anything other than "sex." In several cases brought by transgender litigants in the 1970s and 1980s, however, courts excluded transgender people from sex discrimination protections by narrowly interpreting the laws. In these decisions, the courts often concluded that transgender people were neither male nor female and therefore not covered, or that discrimination based on "change of sex" was different from discrimination based on sex. The flawed reasoning of these older cases was cast into doubt by the 1989 case of Hopkins v. Price Waterhouse and the 1996 case of Oncale v. Sundowner, both of which rejected the premise that federal sex discrimination laws should be narrowly understood. Since these two decisions, state and federal courts (specifically in California, Massachusetts, New Jersey, and Ohio) have upheld sex discrimination claims by transgender litigants. Most recently, in fact, the Ninth Circuit explicitly overturned Holloway v. Arthur Andersen, one of two foundational cases that spawned the earlier exclusions.

Despite the analytical arguments in favor of sex discrimination protections for trans people, there remain important reasons to codify explicit protections, particularly in light of historical exclusions. Adding explicit protections ensures greater predictability of future case outcomes and reassures trans people and reminds employers that they are protected. Disability Protections State and local disability laws also provide some protections for transgender employees who experience discrimination in the workplace. As is often (and correctly) pointed out, being transgender is not a "disability" in the colloquial sense-transgender people are not infirm or physically limited from performing tasks. But in antidiscrimination laws and benefits laws such as social security disability insurance, the term "disability" is not limited to individuals who have a handicap or appear outwardly affected. Under antidiscrimination laws, disability refers to a wide range of health conditions that are significant but do not disqualify a person from performing a job. Disability laws, unlike benefits laws, ensure that people who are able to work are not prevented from doing so by the prejudice or bias of others. The misunderstanding surrounding the term should not prevent trans people from accessing the courts and other protections-instead it presents compelling reasons to continue to correct and dispel stereotypes associated with disability. Most transgender people are currently excluded from disability protections under federal disability statutes. As a result of a political compromise with no basis in medical reality, the two federal disability laws-the Federal Rehabilitation Act (FRA) and the Americans with Disabilities Act (ADA)explicitly exclude from coverage "gender identity disorders not resulting from physical impairments." As a consequence, most transgender people may not bring claims of disability discrimination under federal antidiscrimination laws. Fortunately, however, some state disability laws omit this exemption, and transgender people in these jurisdictions may be protected under the state statutes. Moreover, transgender people may be protected in states where the state disability law is modeled on the federal laws but omits the federal laws' express exclusion. See Doe ex rel. Doe v. Yunits, 2001 WL 664947 (Mass. Super. Feb. 26, 2001). The following analysis may vary from state to state, depending on the extent to which the jurisdiction may depart from federal law. In most states, a person is protected from discrimination if he or she: l has a physical or mental impairment that substantially limits a major life activity (including sex); l has a record of such an impairment; or l is regarded as having such an impairment. A transgender person residing in a state that does not have an explicit exclusion for gender identity disorders and who falls within one of the three prongs is entitled to protection under the state disability discrimination provisions. Several state human rights commissions across the country, including Connecticut, Florida, Illinois, Massachusetts, and New Hampshire, have interpreted state disability laws to include transgender people. Some transgender people experience gender dysphoria (generalized discomfort or unease about birth gender) and, as a result, can easily demonstrate that they have an "impairment" under the terms of the relevant state statutes. At the same time, they may be uncomfortable about embracing a psychiatric diagnosis, which still carries the possibility of stigma in some areas of society. Even among those in the transgender community who reject the psychiatric model, most do not reject the premise that being transgender is likely a medical condition caused by biological factors that are not yet fully understood-and a growing body of scientific research supports this conclusion. Many transgender employees face discrimination in the workplace. Lawyers may look to several sources of law in order to redress the rights of transgender clients who face adverse treatment in such situations, including transgender-specific nondiscrimination laws, state and federal sex discrimination laws, and state disability laws. Although courts historically have found transgender people excluded

from coverage under certain laws, developing case law supports the arguments of transgender employees who face workplace discrimination. Jennifer Levi is a senior staff attorney at Gay & Lesbian Advocates & Defenders (GLAD). She works on a wide range of cases defending the civil rights and civil liberties of gay men, lesbians, and transgender people. She was lead counsel in the case of Doe v. Yunits, representing a transgender student denied the right to attend school because of her clothing.

Why hasnt been any special school has been opened for transgenders? Even special childreb who are physically challenged and mentally also, have such schools that over all develop them and now remains the question of who will teach them? Why dont the social activists who fight for transgender rights, come forward and teach them??

Medicalisation of Sexual Orientation and Gender Identity: A Human Rights Resource Book Edited by Arvind Narrain and Vinay Chandran

Homosexuality in India, where tradition still rules Transgender-specific nondiscrimination law

The compilers explain that the principles detail how international human rights law can be applied to sexual orientation and gender identity issues, in a way that affirms international law and to which all states can be bound to. They suggest that the motivation is so that wherever people are recognised as being born free and equal in dignity and rights, this should include LGBT people as well. They argue that human rights standards also cover issues of sexual orientation and gender identity touch on issues of torture and violence, extrajudicial execution, access to justice, privacy, freedom from discrimination, freedom of expression and assembly, access to employment, healthcare, education, and immigration and refugee issues. The intention outlined is for the Principles to explain that States are obliged to ensure human rights, and each principle recommends how to achieve this, highlighting international agencies' responsibilities to promote and maintain human rights. The principles are based on the recognition of the right to non-discrimination. The Committee on economic, social and cultural rights (CESCR) has dealt with these matters in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the International Covenant on Economic, Social and Cultural Rights. In General Comments Nos 18 of Nos 18 of 2005 (on the right to work), 15 of 2002 (on the right to water) and 14 of 2000 (on the right to the highest attainable standard of health),it has indicated that the Covenant proscribes any discrimination on the basis of, inter-alia, sex and sexual orientation that has the intention or effect of nullifying or impairing the equal enjoyment or exercise of [the right at issue The Committee on the Elimination of Discrimination against Women (CEDAW), notwithstanding that it has not addressed the matter in a General Comment or otherwise specified the applicable provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, on a number of occasions has criticized states, for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that, lesbianism be reconceptualised as a sexual orientation and that penalties for its practice be abolished. Preamble: The Preamble acknowledges human rights violations based on sexual orientation and gender identity, which undermine the integrity and dignity establishes the relevant legal framework, and provides definitions of key terms. Rights to Universal Enjoyment of Human Rights, Non-Discrimination and Recognition before the Law: Principles 1 to 3 set out the principles of the universality of human rights and their application to all persons without discrimination, as well as the right of all people to recognition as a person before the law without sex reassignment surgery or sterilization/Example: Laws criminalizing homosexuality violate the international right to non-discrimination (decision of the UN Human Rights Committee).

Rights to Human and Personal Security: Principles 4 to 11 address fundamental rights to life, freedom

from violence and torture, privacy, access to justice and freedom from arbitrary detention, and human trafficking.[14] Examples:

The death penalty continues to be applied for consensual adult sexual activity between

persons of the same sex, despite UN resolutions emphasizing that the death penalty may not be imposed for sexual relations between consenting adults. Eleven men were arrested in a gay bar and held in custody for over a year. The UN

Working Group on Arbitrary Detention concluded that the men were detained in violation of international law, noting with concern that one of the prisoners died as a result of his arbitrary detention. Economic, Social and Cultural Rights: Principles 12 to 18 set out the importance of non-discrimination

in the enjoyment of economic, social and cultural rights, including employment, accommodation, social security, education, sexual and reproductive health including the right for informed consent and sex reassignment therapy. Examples: Lesbian and transgender women are at increased risk of discrimination, homelessness and

violence (report of United Nations Special Rapporteur on adequate housing). Girls who display same-sex affection face discrimination and expulsion from educational

institutions (report of UN Special Rapporteur on the right to education). The United Nations High Commissioner for Human Rights has expressed concern about

laws which prohibit gender reassignment surgery for transsexuals or require intersex persons to undergo such surgery against their will. Rights to Expression, Opinion and Association: Principles 19 to 21 emphasise the importance of the

freedom to express oneself, ones identity and ones sexuality, without State interference based on sexual orientation or gender identity, including the rights to participate peaceably in public assemblies and events and otherwise associate in community with others. Example: A peaceful gathering to promote equality on the grounds of sexual orientation and gender

identity was banned by authorities, and participants were harassed and intimidated by police and extremist nationalists shouting slogans such as Lets get the fags and Well do to you what Hitler did with Jews (report of the UN Special Rapporteur on contemporary forms of racism, racial discrimination,xenophobia & related intolerance). Freedom of Movement and Asylum: Principles 22 and 23 highlight the rights of persons to

seek asylum from persecution based on sexual orientation or gender identity. Example: Refugee protection should be accorded to persons facing a well-founded fear of

persecution based on sexual orientation (Guidelines of the United Nations High Commissioner for Refugees).[15]

Rights of Participation in Cultural and Family Life: Principles 24 to 26 address the rights of persons to

participate in family life, public affairs and the cultural life of their community, without discrimination based on sexual orientation or gender identity. Example: States have an obligation not to discriminate between different-sex and same-sex

relationships in allocating partnership benefits such as survivors pensions (decision of the UN Human Rights Committee). Rights of Human Rights Defenders: Principle 27 recognises the right to defend and promote human

rights without discrimination based on sexual orientation and gender identity, and the obligation of States to ensure the protection of human rights defenders working in these areas. Examples: Human rights defenders working on sexual orientation and gender identity issues in

countries and regions around the world have been threatened, had their houses and offices raided, they have been attacked, tortured, sexually abused, tormented by regular death threats and even killed. A major concern in this regard is an almost complete lack of seriousness with which such cases are treated by the concerned authorities. (report of the Special Representative of the UN SecretaryGeneral on Human Rights Defenders). Rights of Redress and Accountability: Principles 28 and 29 affirm the importance of holding rights

violators accountable, and ensuring appropriate redress for those who face rights violations. Example: The UN High Commissioner for Human Rights has expressed concern about "impunity

for crimes of violence against LGBT persons and the responsibility of the State to extend effective protection. The High Commissioner notes that "excluding LGBT individuals from these protections clearly violates international human rights law as well as the common standards of humanity that define us all." Additional Recommendations: The Principles set out 16 additional recommendations to national human

rights institutions, professional bodies, funders, NGOs, the High Commissioner for Human Rights, UN agencies, treaty bodies, Special Procedures, and others. Example: The Principles conclude by recognising the responsibility of a range of actors to promote

and protect human rights and to integrate these standards into their work. A joint statement delivered at theUnited Nations Human Rights Council by 54 States from four of the five UN regions on 1 December 2006, for example, urges the Human Rights Council to pay due attention to human rights violations based on sexual orientation and gender identity and commends the work of civil society in this area, and calls upon all Special Procedures and treaty bodies to continue to integrate

consideration of human rights violations based on sexual orientation and gender identity within their relevant mandates. As this statement recognises, and the Yogyakarta Principles affirm, effective human rights protection truly is the responsibility of all.

Q. What are the Yogyakarta Principles? The Yogyakarta Principles are a set of principles on the application of international human rights law in relation to sexual orientation and gender identity. The Principles affirm binding international legal standards with which all States must comply. They promise a different future where all people born free and equal in dignity and rights can fulfill that precious birthright. Q. Why are they needed? Human rights violations targeted toward persons because of their actual or perceived sexual orientation or gender identity constitute an entrenched global pattern of serious concern. They include extra-judicial killings, torture and ill-treatment, sexual assault and rape, invasions of privacy, arbitrary detention, denial of employment and education opportunities, and serious discrimination in relation to the enjoyment of other human rights. Key human rights mechanisms of the United Nations have affirmed States obligation to ensure effective protection of all persons from discrimination based on sexual orientation or gender identity. However, the international response has been fragmented and inconsistent, creating the need for a consistent understanding of the comprehensive regime of international human rights law and its application to issues of sexual orientation and gender identity. The Yogyakarta Principles do this. Q. How did the Principles come about? The Principles were developed and unanimously adopted by a distinguished group of human rights experts, from diverse regions and backgrounds, including judges, academics, a former UN High Commissioner for Human Rights, UN Special Procedures, members of treaty bodies, NGOs and others. The Rapporteur of the process, Professor Michael OFlaherty, has made immense contributions to the drafting and revision of the Yogyakarta Principles. A key event in the development of the Principles was an international seminar of many of these legal experts that took place in Yogyakarta, Indonesia at Gadjah Mada University from 6 to 9 November 2006. That seminar clarified the nature, scope and implementation of States human rights obligations in relation to sexual orientation and gender identity under existing human rights treaties and law. Q. What do they cover? The Yogyakarta Principles address the broad range of human rights standards and their application to issues of sexual orientation and gender identity. These include extrajudicial executions, violence and torture, access to justice, privacy, non-discrimination, rights to freedom of expression and assembly, employment, health, education, immigration and refugee issues, public participation, and a variety of other rights. Q. How can these rights be implemented? The Principles affirm the primary obligation of States to implement human rights. Each Principle is accompanied by detailed recommendations to States. The Principles also emphasize, however, that all actors have responsibilities to promote and protect human rights. Additional recommendations are therefore addressed to the UN human rights system, national human rights institutions, the media, non-governmental organizations, and others.

http://www.yogyakartaprinciples.org/principles_en.htm

What Are The Yogyakarta Principles?

If you peruse international blogs that cover gender identity and sexual orientation issues, from time to time you'll see a reference to the Yogyakarta Principles. What are they, you ask? Well, peeps, school is now in session.

In response to well-documented patterns of abuse of GLBT people, from November 6-9, 2006 a distinguished group of international human rights experts met on the campus of Gadjah Mada University in Yogyakarta, Indonesia to outline a set of international principles relating to sexual orientation and gender identity. The result of that meeting was the Yogyakarta Principles: a universal guide to human rights which affirm binding international legal standards with which all nations must comply. The basic premise is that TBLGI people are all human beings and are equally entitled to human rights. The development of international human rights law has largely ignored them - as racial minorities were once ignored - as women were once ignored - as the disabled were once ignored.

So the people gathered in Yogyakarta logically applied established international human rights principles and made suggestions as to how these 29 principles apply to the situation of LGBTI people around the world. While the principles acknowledge the primary obligation of various nations to implement human rights, each principle in the official PDF format is accompanied by detailed recommendations to nations and their lawmakers. The Principles also emphasize that everyone has responsibilities to promote and protect human rights. There are additional recommendations addressed to the UN human rights system, national human rights institutions, the media, non-governmental organizations, and other interested parties and citizens. The Yogyakarta Principles are: Principle 1: The right to the universal enjoyment of human rights Principle 2. The rights to equality and non discrimination Principle 3: The right to recognition before the law Principle 4: The right to life Principle 5: The right to security of the person Principle 6: The right to privacy Principle 7: The right to freedom from arbitrary deprivation of liberty Principle 8: The right to a fair trial Principle 9: The right to treatment with humanity while in detention Principle 10: The right to freedom from torture and cruel, inhuman and degrading treatment or punishment Principle 11: The right to protection from all forms of exploitation, sale and trafficking of human beings

Principle 12: The right to work Principle 13: The right to social security and to other social protection measures Principle 14: The right to an adequate standard of living Principle 15: The right to adequate housing Principle 16: The right to education Principle 17: The right to the highest attainable standard of health Principle 18: Protection from medical abuses Principle 19: The right to freedom of opinion and expression Principle 20: The right to freedom of peaceful assembly and association Principle 21: The right to freedom of thought, conscience and religion Principle 22: The right to freedom of movement Principle 23: The right to seek asylum Principle 24: The right to found a family Principle 25; The right to participate in public life Principle 26: The right to participate in cultural life Principle 27: The right to promote human rights Principle 28: The right to effective remedies and redress Principle 29: Accountability

Human Rights and Gender Identity Issue Paper by Thomas Hammarberg, Council of Europe Commissioner for Human Rights Table of Contents I. Introduction II. International Human Rights Law III. Specific human rights issues 3.1 Gender identity as a discrimination ground in Council of Europe member states 3.2 Legal recognition of the preferred gender 3.2.1 Conditions for the change of sex and name 3.2.2 Consequences for family 3.3 Access to health care 3.4 Access to the labour market

3.5 Transphobia and violence against transgender persons 3.6 Transgender refugees and migrants IV. Good practices V. Recommendations to Council of Europe member states Commissioners Issue Papers Issue Papers are commissioned and published by the Commissioner for Human Rights for the purpose of contributing to debate or further reflection on a current and important human rights matter. All opinions in these expert papers do not necessarily reflect the position of the Commissioner. The Issue Papers are available on the Commissioners web-site: www.commissioner.coe.int. I. Introduction Gender identity is one of the most fundamental aspects of life. The sex of a person is usually assigned at birth and becomes a social and legal fact from there on. However, a relatively small number of people experience problems with being a member of the sex recorded at birth. This can also be so for intersex persons whose bodies incorporate both or certain aspects of both male and female physiology, and at times their genital anatomy. For others, problems arise because their innate perception of themselves is not in conformity with the sex assigned to them at birth. These persons are referred to as transgender or transsexual persons, and the current paper relates to this group of people. The human rights situation of transgender persons has long been ignored and neglected, although the problems they face are serious and often specific to this group alone. Transgender people experience a high degree of discrimination, intolerance and outright violence. Their basic human rights are violated, including the right to life, the right to physical integrity and the right to health. Although the number of transgender persons is small, it should be pointed out that the transgender community is very diverse. It includes pre-operative and post-operative transsexual persons, but also persons who do not choose to undergo or do not have access to operations. They may identify as female-to-male (FTM) or male-to-female (MTF) transgender persons, and may or may not have undergone surgery or hormonal therapy. The community also includes cross-dressers, transvestites and other people who do not fit the narrow categories of male or female. Many legal frameworks only seem to refer to transsexual persons, leaving out a decisive part of the community. In order to understand the concept of gender identity, it is important to distinguish between the notions of sex and gender. While sex primarily refers to the biological difference between women and men, gender also includes the social aspect of the difference between genders in addition to the biological element. The notion of gender identity offers the opportunity to understand that the sex assigned to an infant at birth might not correspond with the innate gender identity the child develops when he or she grows up. It refers to each persons deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, and includes the personal sense of the body and other expressions of gender (i.e. gender expression) such as dress, speech and mannerisms.1 Most people legally defined as man or woman will correspondingly have a male or female gender identity. Transgender persons, however, do not develop that corresponding gender identity and may wish to change their

legal, social, and physical status or parts thereof - to correspond with their gender identity. Modification of bodily appearance or function by dress, medical, surgical or other means is often part of the personal experience of gender by transgender people. Both the notion of gender identity and the forms of gender expression used in everyday life are important elements for understanding the human rights problems faced by transgender persons. Some legal frameworks in Council of Europe member states, unfortunately, categorise gender identity under sexual orientation, which is not accurate since gender identity and sexual orientation are two different concepts. Sexual orientation should be understood as each persons capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender (heterosexuality, homosexuality and bisexuality).2 In addition, many international and national medical classifications impose the diagnosis of mental disorder on transgender persons. Such a diagnosis may become an obstacle to the full enjoyment of human rights by transgender people especially when it is applied in a way to restrict the legal capacity or choice for medical treatment. The challenge of protecting the human rights of everyone is to apply a consistent human rights approach and not to exclude any group of people. It is clear that many transgender persons do not fully enjoy their fundamental rights both at the level of legal guarantees and that of everyday life. Therefore, there is a need to take a closer look at their situation. This Issue Paper is intended to continue the debate on transgender human rights issues and make the problems encountered by transgender people known more widely.3 The paper outlines the international human rights framework that should be applied to protect the rights of transgender persons. In the following section, it describes the key human rights concerns regarding transgender persons, including discrimination, intolerance and violence experienced by them. The paper concludes with examples of good practice and a set of recommendations to member states of the Council of Europe. One obstacle in the drafting of this paper was the lack of data, research and reports on the theme. The limited information available often refers to countries that are member states of the European Union. The lack of data on other countries demonstrates the need for further research and information gathering. The Office of the Commissioner for Human Rights has therefore launched a comparative study on the situation concerning homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity in all Council of Europe member states, including those countries which are not members of the European Union. Nevertheless, the currently available research already points at a bleak situation and calls for urgent measures to be taken to address the concerns identified. II. International Human Rights Law In principle, international human rights instruments protect everybody without discrimination. Despite the fact that gender identity as a discrimination ground, along with sexual orientation, is often not explicitly mentioned in international human rights treaties, these treaties do apply to all persons through their open-ended discrimination clauses. As for the UN Covenant on Economic, Social and Cultural Rights, this was recently confirmed by the UN Committee on Economic, Social and Cultural Rights which stated that gender identity is recognized as among the prohibited grounds of discrimination; for example, persons who are transgender, transsexual or intersex often face serious human rights violations, such as harassment in schools or in the work place.4 The European Court of Human Rights (ECtHR) has applied the European Convention on Human Rights in significant judgments ruling that states should provide transgender persons the possibility to undergo

surgery leading to full gender reassignment and that this surgery should be covered by insurance plans as "medically necessary" treatment.5 The Court has also ruled that states should recognise the change of sex in identity documents.6 Other instruments, such as the EU Directives implementing the principle of equal treatment between men and women in the access to and supply of goods and services, have closed lists of discrimination grounds and do not include gender identity specifically.7 However, the European Court of Justice (ECJ) has explicitly ruled that discrimination arising () from the gender reassignment of the person is considered as discrimination on the ground of sex in the watershed case P v S and Cornwall County Council. This has been confirmed and extended in later case law of the ECJ.8 As the specific wording of the ECJ judgment shows, sex discrimination is, however, restricted to transgender persons intending to undergo, undergoing or having undergone gender reassigment whose sex change should be legally recognised by states as a result of rulings by the European Court of Human Rights.9 Sex discrimination does not cover nonoperative transgender people. The latter group may not undergo gender reassignment because of their free choice, their health needs, or the denial of access to any treatment, which is common in many Council of Europe member states.10 A recent report of the European Union Agency for Fundamental Rights (FRA) states in this regard: there is no reason not to extend the protection from discrimination beyond these persons, to cover cross dressers, and transvestites, people who live permanently in the gender opposite to that on their birth certificate without any medical intervention and all those people who simply wish to present their gender differently.11 In order to overcome this limitation in coverage of all transgender persons, there is an opportunity to include gender identity explicitly as a discrimination ground in future EU Directives through the review of the EU Gender Directives in 2010.12 The recognition of gender identity as one of the universally protected discrimination grounds has also been voiced by the UN High Commissioner for Human Rights: Neither the existence of national laws, nor the prevalence of custom can ever justify the abuse, attacks, torture and indeed killings that gay, lesbian, bisexual, and transgender persons are subjected to because of who they are or are perceived to be. Because of the stigma attached to issues surrounding sexual orientation and gender identity, violence against LGBT persons is frequently unreported, undocumented and goes ultimately unpunished. Rarely does it provoke public debate and outrage. This shameful silence is the ultimate rejection of the fundamental principle of universality of rights.13 UN Special Procedures and treaty bodies have also applied this approach in their work. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has highlighted several cases of killings of transgender persons and the Special Rapporteur on torture has reported serious abuses against transgender individuals in various country reports. The UN Committee against Torture has specifically addressed the issue of abuses against transgender activists. Moreover, the UN High Commissioner for Refugees has addressed problems transgender persons encounter when applying for asylum or being recognised as a refugee, for example on occasions where a transgender individual is asked by the authorities to produce identity documents and his or her physical appearance does not correspond to the sex indicated in the documents.14 The Parliamentary Assembly of the Council of Europe adopted a Recommendation on the Condition of Transsexuals in 1989.15 Currently a report is under preparation within the Assemblys Committee on Legal Affairs and Human Rights which will cover, inter alia,

discrimination based on gender identity. The Committee of Ministers of the Council of Europe has in several replies to questions from members of the Parliamentary Assembly recalled the principle of equal enjoyment of human rights regardless of any grounds such as gender identity. Furthermore, on 2 July 2008, the Committee of Ministers decided to step up action to combat discrimination on grounds of sexual orientation and gender identity. This resulted in the setting up of an intergovernmental Expert Group, which has been tasked to prepare a Recommendation for the 47 Council of Europe member states. The European Parliament issued a Resolution on Discrimination Against Transsexuals in 1989.16 The Resolution calls on EU Member States to take steps for the protection of transsexual persons and to pass legislation to further this end. In more general Resolutions in 2006 and 2007, the situation of transgender persons has also been paid attention to by the European Parliament.17 In a large scale international effort to promote international standards on sexual orientation and gender identity, a group of distinguished experts in international human rights law published in 2007 the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity. While not adopted as an international standard, the principles are already cited by UN bodies, national courts, and many governments have made them a guiding tool for defining their policies in the matter. The Commissioner for Human Rights has endorsed the Yogyakarta Principles and considers them as an important tool for identifying the obligations of states to respect, protect and fulfill the human rights of all persons, regardless of their gender identity. Of particular relevance is Yogyakarta Principle number 3: Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each persons selfdefined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a persons gender identity. No one shall be subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity.18 III. Specific human rights issues 3.1 Gender identity as a discrimination ground in Council of Europe member states Discrimination based on gender identity is not explicitly covered in legal frameworks in a large majority of Council of Europe member states.19The European Union Agency for Fundamental Rights reports that 13 EU Member States treat discrimination on the ground of gender identity as a form of sex discrimination, 2 Member States consider it inaccurately as sexual orientation discrimination and in 11 Member States it is treated neither as sex discrimination nor as sexual orientation discrimination.20 This results not only in a situation of legal uncertainty as to the precise protection of transgender persons from discrimination, but also in a much lower level of protection of transgender persons. For the other 20 Council of Europe member states this information is not yet researched systematically, though one may assume, based on reports received by the Commissioner, that gender identity is not explicitly defined as a discrimination ground in any of these countries. The absence of explicit recognition of gender identity in non-discrimination legislation also has an impact on its inclusion in the work of equality bodies and National Human Rights

Structures (NHRSs). Only very few equality bodies and NHRSs actually incorporate discrimination based on gender identity in their mandates or tasks. In addition, these organisations often lack the knowledge and competence to deal with gender identity discrimination, and would therefore require training before embarking on this work. 3.2 Legal recognition of the preferred gender Article 8 of the European Convention states that everyone has the right to respect for his private and family life, his home and his correspondence. The European Court of Human Rights has ruled that failure of a state to alter the birth certificate of a person to the preferred gender constitutes a violation of Article 8 of the Convention.21 Member states are thus required to legally recognise the gender change of transsexual persons. A common feature of most gender recognition procedures, if in place at all, is the combination of cumbersome legal and medical requirements, the borderlines of which are often blurred. Lengthy processes of psychological, psychiatric and physical tests are characteristic features of such procedures. Some, like genital examinations by psychiatrists, amount to non-respect of the physical integrity of the person. Often transgender people choose not to enter the official procedures at all due to discriminatory medical processes and inappropriate treatment, or due to the fact that only one course of treatment is available. They are then, in turn, denied legal recognition of their preferred gender and name, or gender reassignment treatment that fits their own wishes and personal health needs. Despite ample case law from the European Court of Human Rights in favour of recognition, legal recognition remains a challenging process for many transgender persons in the Council of Europe member states. 3.2.1 Conditions for the change of sex and name Access to procedures to change ones sex and ones first name in identity documents is vital for a transgender person to live in accordance with ones preferred gender identity. Indeed, the ability to live in the preferred gender and be legally recognised as such is preconditioned by identity papers that are used to conduct everyday life, for example when using a health insurance card, a driving licence or an educational certificate during a job application process. The often lengthy and bureaucratic processes for the recognition of sex and name change result in the inability to travel with valid documents, even to visit relatives in a neighbouring country for a weekend. It could also lead to restrictions on participation in education or employment wherever birth certificates are necessary or sex is indicated on national identity cards. It can mean that transgender people without the correct documentation are effectively hindered from meaningful participation in the labour market, leading to unemployment. There is a need to distinguish between procedures for the change of first name and those for the change of sex. However, both processes frequently require that the individual concerned must first be considered eligible for the procedure by the medical profession. It should be stressed that the eligibility conditions for the change of sex in documents vary widely across Europe. It is possible to roughly distinguish three categories of countries. In the first category, no provision at all is made for official recognition. As pointed out above, this is in clear breach of established jurisprudence of the ECtHR.22 In the second and smaller category of countries, there is no requirement to undergo hormonal treatment or surgery of any kind in order to obtain official recognition of the preferred gender. Legal gender recognition is possible by bringing evidence of gender dysphoria23 before a competent

authority, such as experts from the Ministry of Health (in Hungary), the Gender Reassignment Panel (in the UK) or a doctor or clinical psychologist. In the third category of countries, comprising most Council of Europe member states, the individual has to demonstrate: 1. that (s)he has followed a medically supervised process of gender reassignment often restricted to certain state appointed doctors or institutions; 2. that (s)he has been rendered surgically irreversibly infertile (sterilisation), and/or 3. that (s)he has undergone other medical procedures, such as hormonal treatment.24 Such requirements clearly run counter to the respect for the physical integrity of the person. To require sterilisation or other surgery as a prerequisite to enjoy legal recognition of ones preferred gender ignores the fact that while such operations are often desired by transgender persons, this is not always the case. Moreover, surgery of this type is not always medically possible, available, or affordable without health insurance funding. The treatment may not be in accordance with the wishes and needs of the patient, nor prescribed by his/her medical specialist. Yet the legal recognition of the persons preferred gender identity is rendered impossible without these treatments, putting the transgender person in a limbo without any apparent exit. It is of great concern that transgender people appear to be the only group in Europe subject to legally prescribed, state-enforced sterilisation. It needs to be noted that many transgender people, and probably most transsexual persons among them, choose to undergo this treatment, often including the elimination of procreative organs. The treatment is often desired as a basic necessity by this group. However, medical treatment must always be administered in the best interests of the individual and adjusted to her/his specific needs and situation. It is disproportionate for the state to prescribe treatment in a one size fits all manner. The basic human rights concern here is to what extent such a strong interference by the state in the private lives of individuals can be justified and whether sterilisation or other medical interventions are required to classify someone as being of the one sex or the other. Two important national court rulings support this view. On 27 February 2009, the Austrian Administrative High Court ruled that mandatory surgery was not a prerequisite for gender (and name) change.25 A transgender woman, who underwent all changes apart from the genital surgery and lived as a woman in all social relations, could establish to the court that her particular employment situation would not be conducive to the several months sick leave needed for the operation and that she could not leave her family financially uncared for. This led the court to point out that the legislator had to abolish the original requirement since the court was not able to establish any need for this specific requirement pertaining to transsexual women. In Germany, the Federal Supreme Court has indicated in a judgment that an operative intervention as a precondition for the change of gender is increasingly regarded as problematic or no longer tenable among experts.26 The key point here is that there is no inherent need to enforce one set of specific surgical measures for the classification of an individual to be eligible for changing sex. Similar reasoning lies behind the Spanish Ley de Identidad de Gnero and the British Gender Recognition Act.27Both laws have recognised that the protection of the majoritys assumed unease with the procreation of transgender people which is, due to hormonal treatment

and the wishes of most concerned individuals, extremely rare does not justify a states disregard of their obligation to safeguard every individuals physical integrity. States which impose intrusive physical procedures on transgender persons effectively undermine their right to found a family. Regarding conditions to be eligible for the change of first name, there is a similar pattern to some of the procedures for change of gender described above. The process can be easy or require lengthy and/or costly procedures and medical interventions, or it can be denied entirely. In some countries names can only be changed upon medical testimony that the (full) gender reassignment has taken place, including genital surgeries which are not accessible or wished for by persons for a number of different reasons. In other countries such proof is not necessary but instead, or in addition, people need to have a gender dysphoria diagnosis and two years of hormonal treatment to qualify for the name change. As a consequence, transgender people are, for a long period in their lives, effectively barred from meaningful and full participation in society, education or employment as they may face continuous problems with justifying who they are. The Commissioners Office has received numerous individual reports of transgender persons who, as a result of lack of proper documents, report discrimination and exclusion to a worrying extent. Its also crucial to note that, even when a person has obtained a legal recognition of the new gender, the person may still face practical problems within institutional settings such as hospitals, police stations and prisons. 3.2.2 Consequences for family In some countries there is a legal obligation that a transgender person who is legally married to his or her different-sex partner has to divorcebefore his or her new gender can be recognised. This is particularly problematic in states which do not recognise same-sex marriage, where the change of gender would effectively lead to a same-sex marriage. As same-sex marriage is only possible in five member states of the Council of Europe,28 married transgender persons find themselves forced to divorce prior to their new gender being officially recognised. In numerous cases, forced divorce is against the explicit will of the married couple, who wish to remain a legally recognised family unit, especially if they have children in their care. Indeed, forced divorce may have a negative impact on the children in the marriage. In several countries the parent who has undergone the gender change will lose custody rights of the children. In other states ambiguous legislation is in place and hardly any attention is given to the best interests of the child. 29 This can lead to hardship as in the case where both spouses wished to remain married so that the non-transsexual male partner would not loose custody of the child and could continue to receive state benefits in addition to his parttime work, in order to support his disabled, and now transsexual, spouse in providing care for the joint child.30 The Austrian Constitutional Court has granted a transsexual woman the right to change her sex to female while remaining married to her wife. The court ruled that "changing a sex entry in a birth certificate cannot be hindered by marriage." The German Constitutional Court has ruled similarly, legally obliging the German Government to change the law before the end of August 2009.31 Both rulings call on the state to accept that protecting all individuals without exception from state-forced divorce has to be considered of higher importance than the very few instances in which this leads to same-sex marriages. This approach is to be welcomed as it ends forced divorce for married couples in which one of the partners is transgender.

3.3 Access to health care The right to the highest attainable standard of health is guaranteed by several treaties, including the International Covenant on Economic, Social and Cultural Rights and the European Social Charter. However, transgender persons suffer from several problems in achieving this standard. The Transgender EuroStudy sheds an alarming light on the experiences of transgender people in relation to inequality and discrimination in accessing healthcare in Europe.32 The first aspect in discussing health care for transgender persons is the existence of international and national medical classifications defining transsexuality as a mental disorder. There are currently two established international systems for classifying mental illnesses: the Diagnostic and Statistical Manual of Mental Disorders (DSM) which includes the term gender identity disorder as a mental health disorder and uses it to describe persons who experience significant gender dysphoria, i.e. discontent with the biological sex they are born with.33 Secondly, the WHO International Statistical Classification of Diseases and Related Health Problems (ICD) lists transsexualism as a mental and behavioural disorder.34 It is important to stress that transgender persons are thus labelled as having a mental disorder. As the DSM and ICD systems are often reflected in national medical classifications in Europe, they are frequently applied to diagnose transgender persons in Council of Europe member states. These classifications are in turn problematic and increasingly questioned by civil society actors35 and health care professionals.36 Such classifications may become an obstacle to the full enjoyment of human rights by transgender people, especially when they are applied in a way to restrict the legal capacity or choice for medical treatment. It needs to be noted though that this question is a significant dividing line within the transgender movement itself. Many transgender people feel threatened by a possible change in the classification systems, since they fear it could result in further restrictions in accessing transgender health care. They consider that because health care systems require a diagnosis to justify medical or psychological treatment, it is essential to retain a diagnosis to ensure access to care. Others, however, argue that being diagnosed as having a mental disorder stigmatises individuals in society and makes them objects of medicine, rather than subjects who are responsible for expressing their own health needs. Alternative classifications should be explored in close consultation with transgender persons and their organisations.37 From a human rights and health care perspective no mental disorder needs to be diagnosed in order to give access to treatment for a condition in need of medical care. The second aspect in discussing health care is access to gender reassignment therapy, which is usually available after a person has reached 18 years of age. However, in some countries, like the Netherlands, transgender youth may begin treatment to offset puberty and receive counselling, so as to allow them to make informed decisions about their future gender identity. Then at the age of 18 they can proceed with gender reassignment treatments, if they still wish to. Recently, some other countries, for example Belgium and Germany, have started to provide similar treatment for youth under 18. The European Court of Human Rights has established as a positive duty that states provide for the possibility of undergoing surgery leading to full gender-reassignment. Depending on an individual transgender persons wishes and needs, the person thus has to have access to hormone treatment, gender reassignment surgery or other medical interventions, such as lasting hair removal and voice training. It is important to recognise that for most people

concerned treatment is a medical necessity to make meaningful life possible. Treatment must be adapted to the individuals needs in order to have successful results. The case law of the European Court of Human Rights clearly requires states not only to provide for the possibility to undergo surgery leading to full gender-reassignment, but also that insurance plans should cover "medically necessary" treatment in general, which gender reassignment surgery is part of.38 The ruling of the Court has been successfully referred to by transgender people in several countries, such as Lithuania and Belgium, to extend the coverage of their health insurance. This standard should be implemented in all Council of Europe member states. However, the Transgender EuroStudy surveying the healthcare experience of transgender persons in the EU found that 80% of transgender people in the EU are refused state funding for hormone treatments, and 86% of transgender persons in the EU are refused state funding for surgery to change their sex. As a result, over 50% of transgender persons undergoing surgery to change their birth sex pay entirely for the procedures on their own. There is a lack of information about the situation in non-EU Council of Europe member states. However, it seems that most of them do not provide publicly-funded gender reassignment treatment or only offer it partially. This is clearly against the standards set by the European Court of Human Rights. Experiences of transgender persons with the healthcare system are often negative, with healthcare professionals being uninformed, biased and sometimes overtly rude with their clients, for example referring to the client in the not-preferred gender.39 The above-cited study found that only 30% of respondents, when seeking help or a referral for gender reassignment procedures, experienced what the survey defined as the minimum acceptable level of assistance a practitioner wanting to help, but lacking information about transgender health care. One third reported that they were refused treatment because a medical practitioner did not approve of gender reassignment.40 Some countries only allow one clinic in the whole country to provide treatment, sometimes hampering new research and, potentially, the quality of care. The right to access gender reassignment treatment should include a reasonable choice of available treatment centres and treatment expenses should be reimbursed according to the national health care rules. The quality of transgender-related treatment often does not even come close to the highest attainable standard of health, sometimes resulting in life-long bodily harm. Many transgender persons who opt for gender reassignment surgery are forced to go abroad, facing great difficulty in reimbursing their expenses. Overall, the situation creates inequalities in access to healthcare within a country and between countries. In addition, access to gender reassignment surgery is further complicated or conditioned by so-called "protocols" and conditions regarding childhood, sexual orientation, or clothing tastes, which are highly questionable. There are accounts of transgender people having to undergo genital examinations by psychiatrists, having to tell a set story of their childhood which is the only acceptable one; sometimes their claims are only considered genuine if they have at least one proven suicide attempt. Other transgender persons are being forced to stereotype themselves to the extreme in their preferred gender to fit eligibility criteria, leading to ridicule in daily life. The examples are too numerous to list, but it is safe to state that the majority of tests and processes conducted in most countries will usually include aspects that can at best be called incomprehensible. A third aspect concerns access to general non-transgender related healthcare. The European Union Agency for Fundamental Rights (FRA) reports that a quarter of the respondents in the EuroStudy reported adverse treatment by healthcare professionals because they were

transgender. A fifth reported that being a transgender person affected the way they access healthcare. As a result many transgender people report avoiding doctors visits as much as possible for fear of inappropriate behaviour.41 The FRA report also refers to the Engendered Penalties Study which found that 29% of respondents felt that being transgender adversely affected the way they were treated by healthcare professionals.42 The results of the problems transgender persons encounter in accessing their right to health care are reflected in health statistics. Several studies referenced in the FRA study show that a quarter to one third of transgender people surveyed had attempted suicide. In research carried out in Ireland 26% of transgender persons had attempted suicide at least once43 and half of the transgender respondents in a large-scale study into the health situation for LGBT people in Sweden had at one point or another in their lives considered taking their own life 21% had actually tried to do this.44 3.4 Access to the labour market The right to work is part of the European Social Charter, and includes the right to safe and healthy working conditions. Transgender persons face a number of problems in accessing and maintaining this right. Employment, and thus financial means, is crucial for transgender people to access health care. Having a job implies, in many Council of Europe member states, having a health insurance which should facilitate reimbursement of expenses related to transgender health care. However, since hormone treatments or surgery for transgender persons are not always covered by health insurance schemes, the income from employment is sometimes the only way for transgender people to pay for their specific health care in practice. Unemployment is a major concern for transgender persons. The Engendered Penalties study shows that only 31% of the respondents are in full-time employment. The exact figure for transgender women is 40% and for transgender men 36%, while among the nontransgender population these figures are 57% for women and 72% for men. Spanish research into unemployment amongst transgender people showed that 54% of the respondents were unemployed.45 Some jobless transgender persons, particularly transgender women, are unable to find employment, and see no other option but to work in the sex industry. When employed, many transgender people face problems at the workplace, in particular continuous bullying by colleagues or being refused use of the preferred toilet. Some people are pushed to resign after being put under pressure, teasing, and insults. The lengthy and time-consuming legal requirements to be recognised by the law force transgender people to lead a double life or to inform the employer and colleagues about their intention to change gender earlier than is convenient. There are many practical problems which have an impact on being able to continue working. For example, a work contract might state male, while the legal requirements for accessing gender reassignment surgery state that a transgender woman present herself in female attire at work. This means that the person concerned cannot decide herself when she deems it appropriate to inform her colleagues and employer about her gender identity. Post-operative transgender people are often accidentally referred to in their old gender through numbers on social security cards or mistakes by human resource departments. There is very little recourse available if the effects of this accidental revelation are negative and harassment at the work place becomes unbearable. The Commissioners office has

received individual reports on consistent and degrading workplace discrimination, which go clearly against the right to safe and healthy working conditions and freedom from discrimination in the workplace. Research is still quite limited, but the statistics available show a bleak situation. The Engendered Penalties study found that 23% of the respondents felt the need to change their jobs because of discrimination experienced on grounds of their gender identity. Only about 30% were treated with dignity by co-workers; 10% experienced verbal abuse and 6% were physically assaulted. Forty-two percent of respondents not living in their preferred gender role did so because they were afraid of losing their jobs.46 In a Scottish study, 37% of the respondents were on unemployment benefits.47 Research from Finland48 showed similar findings. Seventy-seven percent of transgender employees did not tell their employers about their gender identity, and about 50% of the respondents found this to be stressful. The need for national non-discrimination legislation in all Council of Europe member states, which includes gender identity as a ground for discrimination in the labour market is thus evident. It is particularly important that changes to non-discrimination laws are also accompanied by awareness-raising campaigns for employers and employees so that the size and the seriousness of the problem is understood. Employers should be better aware of the situation of transgender people to guarantee a safe work environment for all. Special transitional measures may be needed to amend existing work rules, such as dress codes or the use of restroom facilities. Another important aspect is that educational institutions should have the duty to change retroactively the name and sex of a transgender person in degree certificates. This would ensure that transgender persons can continue to benefit from their vocational and academic training and enables them to apply for work appropriate to their professional qualifications rather than pretending they never had any training. A final problem related to employment is the inequality in receiving pensions. In some countries, the age for state pension entitlement for men is 65 and for women 60. Prior to legal recognition transgender women who have reached 60, may be refused pensions that they would normally receive if born female. Yet many older transgender women find that they have to leave their jobs, in order to prevent disclosure of their identity by virtue of the fact that they do not qualify for a pension. Then, even after legal recognition, these women are refused backdated pensions for the period in which they had to rely on their own income and savings. In spite of overwhelming legal arguments they have so far been denied pension rights that other women in the country (born female) enjoy without question, despite rulings of the European Court of Justice to this effect.49 In other countries, where a couple has had to divorce, because the transgender partner is required to in order to receive gender reassignment treatments, or to enjoy legal recognition, surviving spouses of transgender people are barred from receiving their survivors pension. A woman who has been a homemaker all her life will find herself without access to her spouses pension because they have had to get divorced, against their explicit will, in order to enable her spouses gender change. 3.5 Transphobia and violence against transgender persons Articles 2 and 5 of the ECHR guarantee the right to life and security for every person. In spite of this, many transgender people live in fear and face violence in the course of their lives. This violence ranges from harassment, bullying, verbal abuse, physical violence and sexual assault, to hate crimes resulting in murder. Transphobia understood as the irrational fear of, and/or hostility towards, people who are transgender or who otherwise transgress traditional gender norms can be considered as one of the main causes of

violence and intolerance that many transgender persons face. Some people seem to have a problem with the mere existence of human beings whose outer expression of their inner gender identity is not the same as their gender determined at birth. Aggression against transgender people cannot, however, be excused as resulting from ignorance or lack of education. The Engendered Penalties study found that 72% of respondents experienced some form of harassment in public. Forty-six percent stated that they had experienced harassment in their neighbourhoods and 21% stated that they avoid going out. The EuroStudy found that 79% of respondents had experienced verbal abuse, threatening behaviour, physical or sexual abuse while out in public. At school and in the family environment, transgender children and young adults often face an unsafe environment with bullying at school and even expulsion from the family. Fortyone percent of female-to-male and 16% of male-to-female teenagers experienced serious insults by their family, to the point that 20% of female-to-male people were disinherited and cut off from their family entirely.50 When people notice at an early age that they identify more closely with the opposite gender and express the wish to become a girl or boy, there is very little proper counselling and few support networks available for these transgender youth and their parents. Transgender children and youth, therefore, face problems in seeking information, support or treatment. It is in the best interest of the child to receive such information and support, since silence and ignoring their problems only leads to exclusion, self-hatred, bullying, failure in school and exceptionally high suicide rates among transgender youth. In France, research shows that 34% of transgender youth attempted suicide before having access to information and treatment. Under international human rights law transgender children have the right to access appropriate information, support and necessary protection. This was confirmed by the Committee on the rights of the Child which recommended states provide adequate information and support to () transsexual young people (...).51 Transgender men and women have a high risk of becoming victims of a hate crime or a hate-motivated incident.52 An authoritative OSCE report states that: Homophobic hate crimes and incidents often show a high degree of cruelty and brutality. They often involve severe beatings, torture, mutilation, castration, even sexual assault. They are also very likely to result in death. Transgender people seem to be even more vulnerable within this category.53 Despite these findings, gender identity as a possible bias ground for hate crimes is not explicitly recognised in the legislation of most Council of Europe member states. One of the very few exceptions is the recently adopted Scottish hate crime bill which explicitly mentions transphobic hate crime. It is also not clear whether states, alternatively, include gender identity under the category of gender or sex in their hate crime legislation. As a result, transphobia is usually not considered an aggravating factor for hate crimes committed against transgender persons, as shown by the sentences for perpetrators of hate motivated killings in for example Portugal and Turkey.54 Therefore one can only conclude that transgender people are effectively in most countries excluded from specific legal protection, despite their high risk of falling victim to hate crimes. The OSCE has stressed in this regard: By explicitly condemning bias motives, they send a message to offenders that a just and humane society will not tolerate such behaviour. By recognizing the harm done to victims, they convey to individual victims and to their communities the understanding that the criminal justice system serves to protect them.55

Moreover, most states do not record or monitor hate crimes or hate motivated incidents of a transphobic nature. These crimes normally go unreported by the police. This was also noted by the OSCE report which observed that transphobic hate-motivated incidents are among the most under-reported and under-documented. One of the few exceptions is the UK, which has a policy of documenting the number of hates crimes committed against transgender people. The Crime Prosecution Service in England and Wales has developed a policy and practice to ensure that all transphobic crime is investigated56 and in Northern Ireland transphobic hate crimes are reported as part of the annual crime statistics.57 In practice, transgender people are often afforded little protection by law enforcement officials in the event of a transphobic hate crime or incident. In many cases transgender people who turn to law enforcement agencies for protection are often ridiculed, harassed or just ignored, despite the positive obligation of states under the European Convention of Human Rights to investigate these crimes and bring the perpetrators to justice. 3.6 Transgender refugees and migrants The UNHCR has confirmed that asylum claims relating to gender identity may be recognised under the 1951 United Nations Convention Relating to the Status of Refugees provided the criteria in the refugee definition are met.58 Transgender persons are considered under the Convention to be members of a particular social group. However, in most Council of Europe member states transgender persons are not explicitly defined as a distinctive "social group", while other countries, such as France and Austria, have done so. In Sweden transgender people are considered legally to be covered by the category "gender". It would be an important step forward if member states cite gender identity explicitly as a possible ground for persecution requiring international protection. It can also be argued that gender-specific acts of persecution, the term used in the EU Qualification Directive, can be understood as including serious human rights violations and other kinds of severe harm experienced by transgender persons. There is a need for practical instructions as to how asylum claims are processed from persons who are persecuted because of their gender identity. Such instructions should give guidance to asylum officers how to conduct interviews in a transgender sensitive way. Such guidance is also needed for situations in which a transgender person arrives with an identity document which does not indicate the preferred gender. Transgender persons who have applied for asylum sometimes face problems in detention and reception centres from fellow asylum seekers (often from their home country) and there is a serious risk of re-traumatisation for transgender asylum-seekers.59 Sometimes transgender persons are not placed in the mens/womens living quarters they wish to be in, leading to potentially dangerous situations, including heightened risk of sexual violence, harassment and other ill-treatment. There is a need to create an environment in such centres to avoid harassment of transgender persons. Another problem is the lack of access to health care which can lead to an interruption of the continuous hormonal treatment some transgender persons need.60 Besides asylum, migration and travel is another problem for transgender people. The problems faced in obtaining new identity documents with the appropriate name and sex change can prevent transgender people from travelling to a neighbouring country, even on a simple family weekend visit. There is the fear of abuse by border control guards when their physical appearance does not correspond with the name or sex indicated on their identity papers. Freedom of movement can, thus, be severely hampered.

Problems may also arise in the field of family reunification. The country of citizenship sometimes forces the transgender person to divorce after gender reassignment, which can become an obstacle to family reunification and the possibility to go on living with the former spouse in another country. This has a detrimental impact on the children involved in the household as well. Finally, recognition of the change of gender is not necessarily accepted in the country that a transgender person migrates to. IV. Good practices The human rights situation of transgender people in Europe is not positive. However, some of the problems have been acknowledged and good practices are increasing. In the legal field we have recently seen constitutional courts acknowledging that national laws violate the human rights of transgender persons. In the UK the Gender Recognition Bill can, to a large extent, and excepting the divorce requirement, be considered an example of good practice. It was drafted with the participation of transgender people and led to a viable format, circumventing violations like forced sterilisation, medical treatment conditions, or exaggerated procedures. In the field of employment, some trade unions have developed guidelines for employers on protecting transgender people at work, such as the Dutch ABVAKABO and the UK trade union UNISON. In the Italian city of Torino a programme has been set up to reintegrate transgender people in employment after their gender reassignment surgery.61 It consists of a distinct investigation of the needs and skills of the transgender person and gives options for temporary jobs in a number of companies, with the possibility of further permanent employment. A few countries have developed high quality medical centres providing supportive care without resort to excessive psychiatric assessment procedures and giving health insurance coverage that includes all available forms of gender reassignment surgery and hormone treatment. In the UK, Germany and the Netherlands there are support groups for children, teenagers and their parents who have questions around gender identity. Their work is crucial. However, there are not enough of these services available and the public funding for those that do exist is scarce, most are under constant threat of closure. A few local school and university boards across Europe have acknowledged the need to address the high instances of bullying and exclusion experienced by transgender youth. For example, the UK Government Department for Children, Schools and Families is working with the major transgender support groups in the UK to produce guidance for schools on transphobic bullying. Moreover, the Centre for Excellence in Leadership has worked with a transgender rights group to publish a self-study course on transgender issues for senior staff and managers in colleges and other higher educational institutions.62 Regarding the issue of university degrees and papers with the new name and sex of a transgender person, the University of Torino issues student identity cards with the chosen name before the legal name change has occurred in order to facilitate matters for transgender students. In 2008 and 2009 European-wide research projects started on human rights of transgender persons. Some Council of Europe member states have started nationwide research on the situation of transgender people. The European Commission is planning to publish in 2009 a report on transgender discrimination in EC law, which is being drafted by the EU Network of Legal Experts on Non-discrimination". And the year 2010 will hopefully lead to solid

recommendations by the Council of Europe Committee of Ministers that should include, for the first time, gender identity-specific human rights concerns. What is now needed in particular is promotion of a human rights approach to the challenges transgender people face. To help with this, educational campaigns promoting respect and mutual understanding are needed. The information deficit on the specific problems of transgender persons and the bullying and ridiculing they receive need to be addressed. The Commissioners Office has launched a comparative study on the situation of LGBT persons in Council of Europe member states, and gender identity discrimination will have a prominent role in this research. The results are expected in autumn 2010. It is important that gender identity discrimination be addressed by NHRSs and Equality Bodies. A good example of this is the 2006 New Zealand Human Rights Commissions report on discrimination experienced by transgender people.63 In 2008, the Belgian Institute for Equality between Women and Men also launched a study on the situation of transgender persons in Belgium. The results are expected in 2009. Support for civil society organizations promoting human rights of transgender persons, on the national and European level, is crucial for their ability to conduct lobby and advocacy activities. Only a handful of governments, such as the Netherlands, Norway and Scotland, have so far provided funding to transgender NGOs. The city councils of both Vienna and Berlin financially supported the first two European Transgender Councils in 2005 and 2008, which is currently the only specific forum for transgender people on a European level. Finally, discussions are also needed to link the human rights of transgender persons to a variety of other debates and topics: violence against women, domestic violence, multiple discrimination, economic, cultural and social rights. A good example of this is the UK Public Sector Gender Equality Duty which requires all public authorities in the UK to eliminate unlawful discrimination and harassment on the grounds of sex and to promote equality of opportunity between women and men including transsexuals of both genders.64

http://www.yogyakartaprinciples.org/principles_en.htm
Transgender-specific non discrimination law (international commission on human rights) googled this