Проект правовой помощи трансгендерным людям

Are transgender people going to be banned from legally changing their gender? Transgender Legal Defense Project comments

23.03.2018

Some time ago the Internet newspaper Russia Today published an article on an initiative proposed by the Congress of the parents of Russia to introduce a full prohibition of legal gender recognition for transgender people. Many other Media have since shared this information.

Later, the opinion of the head of Social Policy Committee of the Federal Council Valery Ryazansky in support of the initiative was published by RIA Novosti Internet news agency with the headline “Federal Council supports legal gender change ban for transgender people”.

Seeing the concern caused by these events in the Russian transgender community, we want to examine this initiative as to what it is and whether it might pose a real threat to the situation of transgender people in Russia.

To begin with, we have to point out that the above-mentioned Valery Ryazansky is known for earlier initiatives, such as: in 2016 he took part in an initiative to restrict the right of senior citizens to medical help; in 2017 he proposed that self-employed Russian citizens be banned from leaving the country.

Neither of these initiatives has received legal status.

Besides, the initiative of the Congress of the parents of Russia to ban legal gender recognition is only one of several similar suggestions to restrict the rights of transgender people covered by the Media in the last few years. It brings to mind the MP Vitaly Milonov proposing in 2014 that transgender people be banned from getting married. A similar draft law was proposed in 2015 by the MPs Zhuravlev, Gorovtsov and Greshevnikov.

These initiatives have likewise gone no further.

Moreover, the draft law by Zhuravlev, Gorovtsov and Greshevnikov was rejected by the State Duma on first reading, while the MP Tamara Pletneva demanded ”no more pointless proposals like this”.

It is safe to say that the topic of the restriction of transgender people’s rights as well as LGBT rights as a whole has been actively exploited by certain Members of the Russian Parliament. Even though these initiatives receive no support, they get broadly covered by the Media, sealing their authors’ reputation as “defenders of the traditional values” and giving them wider renown. News of this sort better be viewed as a publicity stunt rather than a serious threat to the rights of transgender people.

The initiative of the Congress of the parents of Russia has not been supported so far – in fact, the opposite: it was found meaningless.

Quoting the MP Gennady Onischenko on the issue, as reported by RIA Novosti: ”The matter (of legal gender recognition) is solved quite appropriately at present, with regard to the preservation of the mental status of the person concerned, therefore hardly any new solutions are called for, since we already have those that work. A medical evaluation is made, then they apply to the relevant authorities… This isn’t a mass phenomenon, so the existing procedure has been enough so far. I see no need for more legislation”.

The Human Rights Ombudswoman in Russia Tatyana Moskalkova has also spoken against the initiative. She observed that new restrictions may not be legislated without prior monitoring of the issue. She believes that the existing legislation is fulfilling its purpose adequately.

We must also remind our readers that the Ministry of Health has recently approved the standard for the medical certificate “on gender reassignment”, which has simplified the legal gender recognition procedure in Russia: at present, transgender people who have received a certificate in accordance with the newly approved standard, no longer need to go to court. In our opinion it would be least said illogical on the part of the government to simplify the legal gender recognition procedure only to ban it completely several months later.

At last, we must point out specifically, that no actual law proposal to prohibit legal gender recognition even exists at present. The words of the attendees of the Congress of the parents of Russia and of a single Federal Council member without further support but supplied with big headlines is all there is to it. This gives us assurance that even in case this initiative ends up as a draft law, it will not be adopted.

 

Comments from TDLP lawyers:

The proposal voiced by the Congress of the parents of Russia is no more than a personal opinion. It has as much legal force as a proposal from the Congress of the transgender people of Russia that legal gender change be accessible to anyone on the basis of a simple application to the Civil Registry Office without any medical certificates.

The fact that a member of the Federal Council has voiced support of their initiative has no significance either, since it was not done as part of the legislative process. In theory, Mr Ryazansky, being a member of the Federal Council, and as such, having the right to initiate legislation, may of course develop and propose a draft law on the prohibition of legal gender recognition before the State Duma. However, we believe it to be very unlikely for several reasons.

First, in order to introduce a prohibition of legal gender recognition not a single one but a whole array of draft laws and regulations have to be developed, introducing amendments to various existing regulations on different levels, from laws to orders of the executive authorities and other regulations. Anyone proposing a draft law is required to do so by the existing legislative procedure.

The first law to be amended of course would be the Federal law ”On Acts of Civil Status”. Then, other laws where the possibility of legal gender change is referred to in one way or another will have to be amended as well. Apart from laws, there is a whole body of regulations concerning various consequences of legal gender change (such as the necessity to replace the internal passport of the Russian citizen or the foreign passport). These would also have to be amended in case a ban on legal gender recognition was introduced.

The development of a body of legislation of these proportions is a meticulous task that would require a long time. We feel it is unlikely that anyone would be prepared to invest themselves to such an extent with the only aim to ban transgender people from legally changing their gender marker.

Second, it is necessary to point out that in case Russia did decide to take this step, this would provoke a negative reaction from the international authorities. Only recently the UN Committee on Economic, Social and Cultural Rights recommended that Russia introduce a quick, transparent and accessible legal gender recognition procedure. Article 8 of the European Convention, guaranteeing the right to respect for private life, is in force in Russia in accordance with the interpretation supplied by the European court of Human Rights, which has on repeated occasions ruled that the state is obligated to provide a possibility of legal gender recognition for transgender people. Certainly, a number of laws that significantly limited human rights and faced disapproval on the part of the international organizations working in this sphere, have been passed by the Russian authorities in the recent years, so the question why not pass another one is not entirely unfounded. However, we have no knowledge of a single law of this kind that began as an initiative coming from a public organization rather than from the authorities themselves. We see this as a reason to believe that the likelihood of this proposal progressing to the draft law stage, let alone reaching legal status is extremely low. We must also keep in mind that the LGBT community has lost its status of the internal “arch enemy” of late, according to the state-controlled Media.

Thus, all things considered, it makes more sense for Russia at present to keep the existing legal gender recognition procedure, especially since it was only recently established. As of today, the practice of the application of this procedure is in its infancy, and gives rise to many questions from transgender people themselves as well as their doctors and the state authorities (Civil Registry Offices). An eventual need for modifications in the law enforcement practice as well as the adoption of ICD-11 will entail further changes in the legal gender recognition procedure, but this is a concern for tomorrow (or more precisely, for the next 5 years or so).”

-TLDP lawyers Alexander and Tatiana

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