Women and Justice: Keywords

Person X1 transitioned from female to male. X1 registered as a male and married a woman, X2, in 2008. In 2009, X2 bore a child. In 2012, X1 applied to have the family registry reflect that X1 was the child’s father and that the child was born while X1 and X2 were married. The ward mayor in charge of changes to family registries held that there was a problem with the application because Article 774 of the Civil Law was inapplicable to the child’s situation as the child was not related by blood to X1. X1 did not comply with the ward mayor’s request to fix the application, so the ward mayor filled in the family registry for the child with a blank for father and a note that the child was X2’s oldest son. X1 and X2 filed suit to have X1 added as the child’s father on the grounds that the child should be presumed to be a “legitimately” born child based on Article 772 of the Civil Law. The Supreme Court held that the child should be presumed to be the son of X1, overruling the lower court and the ward mayor’s decision. The court reasoned that under Article 3.1 of the Gender Identity Disorder Law, a transgender man should be treated for all purposes under the law as a man. The court held that this includes being able to marry and have a “legitimate” child. Following this decision, the Ministry of Justice issued a notification on 27 January, 2014 directing that this procedure be followed for any similarly situated families. Subsequently, the state changed the family registry for 45 such couples to reflect that both parents are their children’s parents.

X1は女性だったが、男性になるため、性転換手術を受けた。その後、彼は男性として登録し、2008年に女性のX2と結婚した。その翌年、X2は子どもを出産した。2012年、X1は、X1が子どもの父親であること、子どもがX1とX2の婚姻中に生まれたことを戸籍に反映させることを地方公共団体に請求した。戸籍変更を担当する区長は、子どもがX1と血縁関係にないことから、民法774条の適用を受けられないため、申請に問題があると、子の戸籍に父の欄を空欄にして、子がX2の長男であると記入した。X1とX2は、子が民法772条に基づいて「嫡出子」と推定されるべきであるとして、X1を子の父として加えることを要求し提訴した。最高裁は、X1の子と推定すべきであるとし、下級審および区長の判断を棄却し、「性同一性障害の性別の取り扱いの特例に関する法律」第3条第1項に基づき、トランスジェンダーの男性は、法に基づき、あらことで男性として扱われるべきであるとした。これには、結婚して「正当に」子どもを産むことができることも含まれるとした。この判決を受けて、法務省は2014年1月27日に、同様の状況にある家族に対してこの手続きを行うよう指示する通達を出した。その後、国は、そのようなカップル45組の戸籍を訂正した。

The plaintiff, a councilwoman in the Comune of Lampa, identified as a woman and presented herself to society as a woman, filed a discrimination complaint against the defendant, claiming arbitrary discrimination for failure by the Mayor, as representative of the State, to respect her gender identity. She sued, claiming a violation of Anti-Discrimination Law No. 20.069 (“the Law”). The court, on appeal, reversed the trial court judgment and imposed a fine, finding that the Mayor of the Comune of Lampa had arbitrarily discriminated against plaintiff by failing to respect her gender identity as a woman. The court held that arbitrary discrimination means any distinction, exclusion, or restriction made by agents of the State or individuals that lacks reasonable justification, and that causes deprivation, disturbance, or threat in the legitimate exercise of the fundamental rights established in the Constitution or international treaties on human rights ratified by Chile and in effect, including gender identity as defined by the LGBTI Unit of the Inter-American Commission of Human Rights, which includes transgender identity. Therefore, the right to an identity is constitutionally protected, including the right to identify as lesbian, gay, bisexual, transgender, and intersexual. Any deprivation, disturbance or threat to such identifying rights constitutes an arbitrary discrimination within the meaning of Article 2 of Law No. 20,609.

La demandante, vecina de la comunidad de Lampa, identificada como mujer y presentada a la sociedad como mujer, interpuso una denuncia de discriminación contra la imputada, alegando discriminación arbitraria por incumplimiento del Alcalde, como representante del Estado, de respetar su identidad de género. Ella demandó, alegando una violación de la Ley contra la Discriminación No. 20.069 (“la Ley”). El tribunal, en apelación, revocó la sentencia del tribunal de primera instancia e impuso una multa, al considerar que el alcalde de la comuna de Lampa había discriminado arbitrariamente a la demandante al no respetar su identidad de género como mujer. El tribunal sostuvo que “discriminación arbitraria” significa toda distinción, exclusión o restricción realizada por agentes del Estado o personas que carece de justificación razonable, y que ocasiona privación, alteración o amenaza en el legítimo ejercicio de los derechos fundamentales consagrados en la Constitución o en las normas internacionales, tratados de derechos humanos ratificados por Chile y en vigencia, incluida la identidad de género según la definición de la Unidad LGBTI de la Comisión Interamericana de Derechos Humanos, que incluye la identidad transgénero. Por lo tanto, el derecho a la identidad está protegido constitucionalmente, incluido el derecho a identificarse como lesbiana, gay, bisexual, transgénero e intersexual. Cualquier privación, alteración o amenaza a tales derechos identificativos constituye una discriminación arbitraria en el sentido del artículo 2 de la Ley N ° 20.609.

The court ruled that a person who was designated male at birth, but who had undergone sex reassignment therapy and who had changed their legal identity to female has the right to change their legal identity back to male, despite having female genitalia. The court further held that Section 1 of the Swedish Gender Identification Act can be applied in this situation (i.e., where a person would like to change his or her legal identity back to a previous legal identity after having undergone sex reassignment therapy). Section 1 of the Swedish Gender Identification Act provides the test for changing one’s gender identity as follows: (i) the person feels that they belong to the opposite sex, (ii) the person has been acting in accordance with the desired gender identity, (iii) the person can be expected to live with the chosen gender identity in the future, and (iv) the person is above 18 years old. The Swedish National Board of Health and Welfare and the Stockholm Administrative Court denied the petition, arguing that due to the applicant’s previous sex change it cannot be expected that the applicant will continue to live with the chosen identity. On appeal, the Stockholm Administrative Court of Appeal found (a) that it was possible to apply Section 1 of the Swedish Gender Identification Act in a case where a person would like to change his or her legal identity back to a previous legal identity, and (b) that the fact that the applicant had previously gone through a sex change did not indicate that the now-chosen gender identity will not be maintained in the future. Therefore, the Court of Appeal allowed the change of identity.

The Supreme Court of Pakistan considered the social status and injustices caused to the transgender population. The Court noted that under the Constitution of Pakistan, transgender individuals are entitled to enjoy constitutional rights like every other citizen of Pakistan. Over the years, transgender individuals in Pakistan have been deprived of inheritance, other property rights, voting rights, education, and employment due to the stigma and exclusion they have suffered. The Court directed the National Database and Registration Authority to adopt a strategy for recording exact status in the electoral list and the Federal and Provincial Governments to ensure that transgender individuals receive childhood education. The Court directed the Chief Secretaries/Commissioners to consult with the Social Welfare Department to implement the order and prepare a policy that would allow transgender individuals to vote during elections.

The plaintiff-appellant a trans woman lieutenant in the Salem, Ohio, Fire Department, sued the City of Salem, alleging discrimination based on sex in violation of Title VII of the Civil Rights Act. According to the plaintiff’s complaint, after she began expressing a more feminine appearance at work on a full-time basis, her co-workers informed her that she was not acting masculine enough. She then notified her immediate supervisor that she had been diagnosed with gender identity disorder and that she planned to physically transition from male to female. The plaintiff’s supervisor met with the City of Salem’s Law Director and other municipal officials, who required the plaintiff to undergo three psychological evaluations. The plaintiff retained legal counsel, received a “right to sue” letter from the U.S. Equal Opportunity Employment Commission, and was shortly thereafter suspended for one 24-hour shift, allegedly in retaliation for retaining counsel. The district court dismissed his complaint, but the Sixth Circuit reversed and remanded, holding that the plaintiff sufficiently plead a prima facie case of retaliation under Title VII, as well as claims of sex stereotyping and gender discrimination.

On February 6, 2009, four transgender individuals (A, B, C, D) identifying as female were arrested and charged with both Loitering and Wearing Female Attire. The police detained the Applicants for the entire weekend without explaining the charges against them. Wearing Female Attire is prohibited under Section 153(1)(XLV11) of the Summary Jurisdiction (Offences) Act, chapter 8:02. At the hearing on February 9, 2009, the Chief Magistrate commented that the Applicants were confused about their sexuality and told them they were men, not women, and needed to give their lives to Jesus Christ. The Applicants, who were all unrepresented at the time, pleaded guilty to the charge of Wearing Female Attire. Applicants A, B and D were fined $7,500, and Applicant C was fined $19,500 (Guyanese dollars). The loitering charges were eventually dismissed. The Applicants contacted the Society Against Sexual Orientation Discrimination (SASOD), the Equal Rights Trust’s Guyanese partner, about the case. SASOD agreed to represent Applicants and filed a Notice of Motion challenging the Magistrate’s Court decision and seeking redress. The Applicants argued that the police violated the Constitution because the officers failed to inform them of their arrest and did not permit the Applicants to retain counsel. They also argued that Section 153 (1) (XLV11) of the Summary Jurisdiction (Offences) Act 1893 is: (1) vague and of uncertain scope; (2) irrational and discriminatory on the ground of sex; and (3) a continuing threat to their right to protection against discrimination on the ground of sex and gender under the Constitution. Applicants further argued that, by instructing the Applicants to attend Church and give their lives to Jesus Christ, the Chief Magistrate discriminated against them on the basis of religion, which violated a fundamental norm of the Co-operative of the Republic of Guyana as a secular state in contravention to the Constitution. The Court upheld the Applicants’ claims in relation to their fundamental right to be informed of the reason for their arrest under Article 139 of the Constitution, but rejected all of their other claims. The Court found that the prohibition of cross-dressing for an improper purpose was not unconstitutional gender or sex discrimination, impermissibly vague, or undemocratic. The Court also struck SASOD’s application in full, finding that SASOD did not have standing to be an applicant in the case.

Pro se plaintiff Rosati, a transgender female, was imprisoned in California and suffering from Gender Dysphoria. Prison officials refused to provide the medically necessary gender reassignment surgery. The prison officials denied the gender reassignment surgery on the recommendation of a physician’s assistant who had no experience in transgender medicine and in spite of the plaintiff attempting repeated self-castrations. The district court dismissed without leave to amend for failure to state a claim on which relief could be granted. The Ninth Circuit reversed the dismissal citing that the prison officials were deliberately indifferent to the serious medical need of the inmate and that such conduct was a violation of the Eighth Amendment right to be free from cruel and unusual punishment, and that a plausible claim for relief was stated.

The Victim, born a male, identified as a female while growing up and was diagnosed with gender identity disorder. At the age of twenty-four, the Victim underwent a sex-change operation and was diagnosed as a transsexual by a psychiatrist. The Victim had cohabited with a male for ten years and had lived as a female for the past thirty years after the operation. Under Korean law, the victim of the crime of rape must be female. Thus, the central issue of the case pertained to the appropriate standard in determining the legal gender of a rape victim. The Supreme Court affirmed the lower court’s decision, holding that the Victim was a female under the law. In making this decision, the court noted that it must conduct a comprehensive evaluation of the biological, psychological and social factors, rather than merely relying on biology. Thus, in determining an individual’s gender, the Supreme Court noted that lower courts must consider the individual’s own sense of identity, including an individual’s behavior, attitude and characteristics. Additionally, courts must look to factors such as the individual’s discomfort regarding his or her biologically assigned gender, the individual’s sense of belonging and identity, whether the individual wants to obtain the genitals and other sexual characteristics of the opposite sex, whether a psychiatrist has diagnosed the individual as having transsexualism and whether the individual has received psychiatric treatment and hormone therapy, which failed to cure such symptoms. Lastly, courts must look at factors such as whether the individual has adapted to the opposite sex mentally and socially, has undergone sex reassignment surgery, identifies with such gender, wears the clothes and carries him or herself as the opposite sex, and whether others accept the changed gender. In this case, the Victim identified herself as a female and did not associate herself as a male, underwent a sex-change operation, and lived her life as a female for over thirty years after the operation. Thus, the court concluded the Victim was a female, and a rape was committed with knowledge that the Victim was a female.

The Discrimination Act (“DA”) promotes equality regardless of gender, sexual orientation, or any other identity by defining and prohibiting discrimination and sexual harassment. The DA provides anti-discrimination laws which state that as long as an individual is capable of performing the relevant task, or eligible to receive services, he or she may not be discriminated against based on any identity factors. Moreover, the DA provides that organization leaders are obligated to investigate and take measures to prevent future discrimination or harassment upon becoming aware of such potential discrimination or harassment. Finally, the DA provides immunity provisions for those who report behavior that violates the DA. The penalty for failing to fulfill obligations under the DA is an obligation to pay compensation for the discrimination suffered, decided by the Board against Discrimination, and subject to appeal by the payee.

This Act is a comprehensive act that replaced several pieces of legislation, including the Sex Discrimination Act of 1975. In general, The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society, and provides equality provisions, including the following:

The Act was adopted to amend several major pieces of legislation in Tasmania, including the Adoption Act 1988, the Anti-Discrimination Act 1998, and the Births, Deaths and Marriages Registration Act 1999, with the purpose of improving and strengthening the rights of trans people. The new provisions make it possible to change legal gender through statutory declaration and remove the previous requirement of having completed gender reassignment surgery before amending a birth certificate. Additionally, gender is now allowed to be taken of birth certificates altogether. The Act entered into force on 5 September 2019.