Statement concerning the draft Government proposal for the act on legal recognition of gender and amendments to related legislation (TAS 98/2022, issued on 1 April 2022)
The Ombudsman for Equality is in favour of the proposal and considers it important that the new act on legal recognition of gender is enacted during the current term of government. On the other hand, the Ombudsman for Equality wishes to note that the new act is just one – albeit significant – step in improving the legal status of transgender people. Efficient prevention of discrimination that is based on gender identity and expression of gender and better realisation of the rights of people belonging to gender minorities requires more changes to both practices and legislation, for example to protect intersex people.
Section 1 of the new proposed act on legal recognition of gender concerns the prerequisites for legal recognition of gender. The person must present evidence indicating that they consider to permanently belong to the gender to be legally recognised. According to the provision-specific justifications, requirements cannot be set for the content of the evidence because the experience of gender is individual and does not necessarily correspond with the binary concept of gender. According to the proposal, the applicant does not need to identify as transgender. For example, an intersex person could apply for legal recognition of gender on certain conditions. The justifications for this section do not mention the possibility for non-binary people to apply for legal recognition of gender.
However, the draft Government proposal notes that the number of people identifying as non-binary has significantly increased, and the proposal is estimated to also have some positive effects on the status on non-binary people. Although gender can be legally only recognised as either woman or man, the Ombudsman for Equality considers it possible that the experience of some non-binary people may be closer to the gender other than the gender as which they are registered in the population information system. Thus, some non-binary people may apply for legal recognition of gender. Non-binary people should also be mentioned in the provision-specific justifications.
With regard to the requirement of age of majority, the Ombudsman for Equality considers it important that the Ministry of Social Affairs and Health has examined the position of children and young people from the perspective of fundamental and human rights. In the opinion of the Ombudsman for Equality, the view presented in the report, according to which legal recognition of gender being categorically dependent on age of majority does not appear to be in the best interests of the child, is justified. The Ombudsman for Equality is in favour of careful further investigation to determine how minors should be taken into consideration in the legislation.
According to section 2(4) of the proposal, in cases concerning an applicant who is married or in a registered partnership the Digital and Population Data Services Agency must send a notification about the legal recognition of gender to the applicant's spouse. The Ombudsman for Equality urges to consider the necessity of this provision. The duties of authorities do not typically include notifying a person about matters concerning their spouse. Various types of information that falls under the scope of privacy protection, such as information related to health, client relationship with social services or changes to financial position, is primarily information that an authority does not disclose to a spouse. Because legal recognition of gender does not have direct legal effects on the spouse, the Ombudsman for Equality does not see a reason on the basis of which authorities should notify the spouse about the change of legal gender as proposed in the provision.
According to section 3(1) of the proposal pertaining to legal effects of legal recognition of gender, the legally recognised gender of a person should primarily be considered as the person's gender in applying other legislation. The justifications for the provision state that legally recognised gender is used in applying the provisions of the Conscription Act (1438/2007), but the grounds and the impact assessment do not specify how call-up is applied in practice in cases of persons who have had their gender legally recognised as man at an age where they are still subject to call-ups. This should be noted in further preparations.
Section 3(2) refers to a person's "reproductive biological sex". The term would be a new term used to refer to sex/gender on this legislative level. It is important that aspects of gender that are significant with regard to reproductive and sexual health are recognised and that access to medical examinations or treatment is not jeopardised due to legal recognition of gender. However, it should also be ensured that the use of such new term does not create contrast between different definitions of gender in a way that would expose a person to discrimination or inappropriate treatment by parties such as health care services.
The Ombudsman for Equality also wishes to draw attention to the fact that society has a variety of gendered practices that are not based on law. Gendered washing facilities and dressing rooms in particular are rarely regulated at the level of legislation. However, they are a fact of everyday life for majority of the population in schools, workplaces, leisure activities and various services.
In the opinion of the Ombudsman for Equality, work on legislative reforms, such as the reform of the Equality Act, should pay attention to the basis of the various differentiations by gender, as well as the appropriate level of regulations in which they should be provided for.
05.04.2022
