Why Do We Need a New Gender Recognition Act?

LGBTQI FactsRFSL

In 1972 Sweden became the first country in the world to give trans people the right to change their legal gender and the right to undergo gender affirming genital surgery. The law has been adjusted several times throughout these 50 years but is now in need of being replaced in its entirety. The government has just presented a proposal for a new bill.

What the current law looks like

The act that RFSL wants to change is called the gender recognition act.

The act regulates two things:
– trans people’s access to gender affirming genital surgery
– changing legal gender.

Changing one’s legal gender means changing the gender marker in one’s passport and a slightly altered personal identity number. In order to change one’s legal gender it is not required to undergo any surgical procedures. 

Not everyone seeking gender affirming care wants to change their legal gender and/or undergo gender affirming genital surgery. Other kinds of gender affirming care, such as hormone treatment, top surgery or hair removal isn’t legally regulated. These kinds of treatments are offered to persons diagnosed with gender dysphoria based on their specific needs.

There are different kinds of diagnoses of gender dysphoria. Today, only people with a diagnosis of transsexualism are eligible to change their legal gender and given access to gender affirming genital surgery. Non binary people suffering from gender dysphoria are seldom diagnosed with transsexualism. Some non binary people want to change their legal gender to the other of the two legal genders because it better represents their gender identity. However, because of today’s legislation they do not have the ability to do so. 

How the law is used today

The Legal Council at the Swedish Board of Health and Welfare makes the decision of if a person is allowed to change their legal gender or undergo gender affirming genital surgery. The Legal Council is connected to the Swedish Board of Health and Welfare but is an independent body with its own decision-making power.

There’s currently an age limit of 18 years for changing your legal gender and/or having genital surgery.

Anyone who wants to change their legal gender and/or undergo gender affirming genital surgery must have been in contact with a gender clinic for at least two years before an application can be sent to the Legal Council. A doctor’s certificate from the gender clinic must be attached to the application. The time it takes for the application to be answered varies but it is usually at least a six month wait. There’s currently an age limit of 18 years for changing your legal gender and/or having genital surgery.Persons under the age of 23 also need special circumstances in order for the Legal Council to approve an application for gender affirming genital surgery. 

The new proposed bill

A new Gender Recognition Act has been investigated many times during the last 15 years. The act has also been partially revised through different judicial processes. For example, an initial condition of changing one’s legal gender was that one had to be both unmarried and sterilized. Today’s law is however still ineffective and outdated.

There is now a proposal for new legislation. The proposal entails that the Gender Recognition Act would be split into two laws, one that concerns changing one’s legal gender and another concerning gender affirming genital surgery. 

The proposal suggests that no medical evaluation should be necessary to change one’s legal gender a first time. Changing one’s legal gender would instead be done by submitting an application form to The Swedish Tax Agency. The agency would make no judgment on whether the person applying is trans or not, they would simply judge if the application has been submitted correctly. There would be a waiting period of 4 months after the application has been submitted to The Swedish Tax Agency after which the person applying would need to confirm their application. In order to change their legal gender more than once the person would need to go through a short medical evaluation. Anyone over the age of 12 would have the right to change their legal gender, but children under 18 would need to apply together with their legal guardians.  

In order to undergo gender affirming genital surgery no permission from the Legal Council would be needed. The decision would be made by the person themselves together with their physician. The age limit for gender affirming genital surgery would not change from 18 years of age, but the requirement of persons under 23 needing special circumstances in order to undergo the surgery would be removed. In this proposal gender affirming genital surgery would also be available for non binary people.

What does RFSL think about the new bill?

RFSL thinks the bill is generally good and we want it to become Swedish law. We do however not agree with all parts of the proposal.

It is important and good that the law is split into two different laws. The current law is not in line with the current view on gender identity, where body and identity don’t need to match in accordance with norms of gender and sex. It also does not secure trans people’s right to self-determination and integrity. Not all trans people want, can or need to go through gender affirming genital surgery but might still want to change their legal gender. The current requirement that anyone wanting to change their legal gender needs to have had regular contact with a gender clinic for at least two years also contributes to the problem of the waiting period for gender affirming care being up to several years. Thus important health care resources would be liberated with a new law.

You should be able to change your legal gender as easily as you can change your first name.

We think it’s good that the focus of the proposed laws is on self-determination and personal integrity. We also think it’s good that it would be possible to change one’s legal gender through a simple administrative process and that the age limit is lowered to 12. We would however rather have the age limit be even lower so children would be able to start school with their correct legal gender. People under the age of 18 have the possibility of living in accordance with their gender identity by going through a social transition where they can change their gender expression and their legal name. Currently there is no age limit for changing your name. Your legal gender is however still on your identity documents, which forces you to come out or be questioned on your gender identity while traveling, applying for library cards, when your age is checked at the movie theater and in several other situations where your identity needs to be confirmed. This causes discomfort and limits what you can do in life. 

We also do not think that a medical evaluation should be necessary in order to change your legal gender more than once. One should always have the right to change their legal gender under the same conditions as the first time. 

We think it’s good that the decision to undergo gender affirming genital surgery would be taken by the patient together with their attending physician. Gender affirming care is given with the purpose of reducing gender dysphoria. All other treatments are given after extensive contact with a medical examination team led by a doctor: gender affirming genital surgery should not have to be an exception to this rule. We also think it’s good that non binary persons would get access to gender affirming genital surgery. We are skeptical of the 18 year old age limit on gender affirming genital surgery on principle because we are generally against age limits for health care. Instead we would prefer that this form of health care is given on the same basis as all other forms of health care, guided by evidence and proven experience. 

By splitting the act in two, important resources are freed up.

There are different diagnoses of gender dysphoria. Today, only people with the diagnosis of transsexualism can get a new legal gender and access genital surgery. Non-binary people suffering from gender dysphoria are seldom diagnosed with transsexualism. Some non-binary people want to change their legal gender to better suit their gender identity, but today’s legislation and praxis don’t give them this opportunity.  

Concerns about a new act

A concern that is sometimes brought up is that people could change their legal gender for the fun of it or in order to exploit it in different ways. An example of this is that a cisgender man could change his legal gender to female in order to be allowed into women’s changing rooms and commit assaults. The countries that have implemented simpler processes for changing one’s legal gender (Norway, Denmark, Ireland, Malta, Argentina among others) have however not encountered this problem. Changing one’s legal gender is a time consuming process where one needs to make arrangements with their bank, their employer and in a myriad other parts of their life. A person comitting sexual assault in changing rooms is never okay and it is something we need to counteract, but we do not think this new law would make things easier for these perpetrators. If this law would be used for such a purpose it would be necessary to investigate how we should stop the perpetrators. RFSL does however not think that the standard of living of trans people should be limited because of concerns regarding possible assaults cisgender men might comitt. 

Another concern that is sometimes raised is that gender equality statistics could be affected by persons changing their legal gender. Statistics Sweden has however expressed that their work would not be significantly affected by this. RFSL’s standpoint is that gender equality statistics would be even more accurate if more trans people would be able to change their legal gender since more people then would be registered as their correct gender. 

That gender affirming genital surgery would be done too flippantly if it was easier to get is also a concern that is sometimes raised. However, according to the proposal gender affirming genital surgery is something that would only happen in consultation with the attending physician and in accordance with the treatment they would consider to be the most suitable. The National Board of Health and Welfare has developed material called “Proper care for people with gender dysphoria” (God vård vid könsdysfori) to serve as a guide in how this health care should be provided. 

Another fear regarding letting people under the age of 18 change their legal gender is that they would regret it afterwards. The minors who apply to change their legal gender have to apply together with their legal guardians, which means that the adults who know the child best must assess this to be the right decision for the child. Apart from this there is a 4 month waiting period after which a confirmation is needed, so it’s not a decision that can be made thoughtlessly. If despite it all the person does regret the decision they can change their legal gender again since changing one’s legal gender is completely reversible. 

What happens now?

Further investigations have been made since a bill was presented and retracted in 2018. The government has Last year the government promised that the Swedish parliament would vote about a new Gender Recognition Act before the election of 2022. A bill has been drafted and has undergone public consultation where several different organizations have given their opinion on its content. 

A new act would improve the living standard for many trans people in Sweden.

We are currently waiting for the government to set a date on which the parliament will vote on if the bill should become Swedish law. A first list of which bills will be voted on by parliament this year has been published and this bill was not on that list. RFSL will continue to push for the vote to happen before the election of 2022. 

A new law would improve the standard of living of many trans people in Sweden and we have waited long enough. The government needs to make their promise a reality so that a vote in parliament about the adoption of a new and modern Gender Recognition Act will take place before the election.