Children have the right to their own gender identity
In Norway, children under the age of sixteen can now change their legal gender. Anniken Sørlie investigates how the legislation affects the way children and youth perceive their own identity.
This article was originally published on Kilden - Information and news about gender research in Norway. Read the original article.
“I collect stories, either from parents or young transpersons, in order to study their experiences. I investigate how their legal right – broadly speaking – affects their lives and identities.”
Anniken Sørlie’s study is part of a larger research project on gender identities and sexual orientation within international and Norwegian law (see facts).
Gender identity and sexual orientation in international and Norwegian law
Research project 2013-2017 at Department of Public and International Law, University of Oslo.
Led by Professor Anne Hellum.
The project looks at people who don’t fit into the traditional two-gender model and their situation.
The project researches the right to legal identity, the right to health and the right to dignity, integrity and self-determination.
The purpose of the project is to give a description and assessment of Norwegian legal regulations and administrative practice in light of new gender identities as they are manifested in society, the legal development in other countries, and within international human rights.
The project is funded by the Research Council of Norway.
The book Human Rights, Sexual Orientation and Gender Identity recently appeared on Routledge publishing.
When Sørlie started her PhD research in 2013, the diagnose transsexualism was still a requirement for being granted gender-confirming treatment in order to change your national identity number and consequently your legal gender.
“Then the law on legal gender change was passed in 2016, which says that it’s enough to submit a self-certification note in order to change your legal gender. Also children between the age of six and sixteen can get a new national identity number with their parents’ consent,” says Sørlie.
The body was everything
It all started with the national identity number. The third last number indicates whether you’re registered as a woman (even number) or as a man (odd number). This system was introduced in 1964 as a way of distinguishing the tax payers, and was administered by the Norwegian Tax Administration.
We are all assigned a national identity number when we are born based on a medical decision of the child’s gender. A category on the birth notification form is ticked off from looking at the child’s genitals. In cases of doubt – so-called intersex cases – the category ‘unknown’ is ticked off in the birth notification form. In such cases the child is given a female national identity number which is subject to change at a later stage.
“In the 1970s, an administrative practice was established saying that you needed to be diagnosed as transsexual and go through both a so-called perception of reality test, hormone treatment, and eventually remove your reproductive organs. Only then, with a confirmation from National Treatment Service for Transsexualism at Oslo University Hospital in your pocket, were you entitled to apply for a new national identity number.”
The possibility of change was thus dependent upon the body.
“As far as possible the body should fit into one of the categories ‘woman’ or ‘man’ in accordance with the way society identify these categories. As a consequence, you were not supposed to reproduce following a legal gender change.”
The law no longer dependent on medicine
In her PhD thesis, Sørlie discusses various aspects of judicial rights and gender identity. The first article, entitled “Legal gender meets reality: a socio-legal children´s perspective”, is already published in Nordic Journal of Human Rights.
And human rights have been a significant supplier of terms in the discussion on legal gender.
“Requiring medical treatment in order to change legal gender is breaching with the individual’s right to respect for privacy as described in article eight of the European Convention on Human Rights. The right to privacy also implies the right for recognition of one’s own gender identity. It is particularly in light of this article that transgendered people’s rights have been strengthened, as transgendered people have submitted complaints about certain countries to the European Convention on Human Rights,” says Sørlie.
“The law against discrimination due to sexual orientation came into force in 2014. After this point, The Equality and anti-discrimination ombudsman plays a particularly important role through their case handling of complaints in order to clarify transpersons’ rights according to Norwegian anti-discrimination jurisdiction.”
Until 2016, the law sought support from medicine and left it to the doctors to decide a person’s legal gender.
“Since legal gender became a question of human rights, the law had to tear itself away from medicine.”
It should be mentioned that Norway is about to run out of national identity numbers along the lines of the current system. Thus it makes sense to ask whether it would be easier to simply introduce a gender neutral identity number?
“Yes, and this is also the model we seem to land on when the tax authorities will be introducing a new system. The reason for the new system has nothing to do with human rights, but rather that it will be cost-effective.”
The legal gender is also expressed in passports, which may cause problems for transpersons with another gender identity than the one given in the passport.
“The international passport standard opens for a third gender category in the passports, an X instead of female or male, but this hasn’t been introduced in Norway.”
Sørlie has conducted qualitative interviews with both children and youth who want to change their legal gender, and with parents of children who identify themselves as transpersons.
“I did the interviews before the new law was passed, that is before children were allowed to change their national identity number and consequently their legal gender. Hearing some of the children’s stories was quite emotional; they possess a lot of knowledge about the way in which gender was regulated in our society at the time and about what the state required in order for them to be recognised as either woman or man when they grew up.”
One of the children, Sørlie called her Christine, could say things like “I can never have children”.
“Christine, who was in primary school at the time, was imagining how she would have to change her body. Her mother was however in doubt whether this desire for surgery was about her distaste for her own body or whether Christine thought it was the only opportunity she had for being recognised as a woman. According to my interpretation of the interview material, administrative practice was decisive for the children’s perceptions of their own opportunities. The administrative practice created a sense of otherness within them, they felt stigmatised and less worthy than other boys or girls. They were worried about their future.”
Questions concerning children and trans identities have received increasingly more public attention over the past years. Recently the electronics franchise Elkjøp had a touching TV advertisement just before Christmas, in which a young transperson gets a much-wanted Christmas present from an adult family member.
The TV series Born in the wrong body (Født i feil kropp), which was shown on TV2 in 2014, introduced children and youth from across the country and gave many children with a trans identity a language, according to Sørlie.
The challenging cases are the ones in which parents and children disagree on whether the child should change its legal gender or not.
“In many ways there has been an upheaval since 2012, when I wrote my master’s thesis on the conditions concerning the removal of reproductive organs. The level of knowledge among the population has changed a lot.”
During 2016, 490 people were granted their application to change their legal gender. It is not yet clear how many of these were under the age of 16, but we know that nine people under 16 had a new national identity number per 1 September 2016.
“The challenging cases are the ones in which parents and children disagree on whether the child should change its legal gender or not. In cases where only one of the parents supports the child, the child may change its national identity number if the county governor of Oslo and Akershus believes that this is for the best of the child. This can be a difficult assessment to make. How may the child’s interests be best looked after when there’s a conflict between parents and child? Questions like this will arise in the time to come,” according to Sørlie.
“At the same time, changing your legal gender is not irreversible in the same way as gender-confirming surgery. If the child should find out that it wants the original legal gender back it is perfectly possible to change it again. On the other hand, one may ask why children need to be assigned a legal gender from birth before the child itself has any possibility of knowing what gender it belongs to.”
Translated by: Cathinka Dahl Hambro