Transidentity raises numerous legal questions as it challenges the way the law fundamentally categorizes society in two different groups. The European legal landscape has evolved towards greater recognition of transgender people’s rights, notably in terms of legal gender recognition and non-discrimination, but many inequalities remain deeply rooted in the law. Gender identity has increasingly been recognized as a ground of discrimination by national and regional instances in Europe, and in 2002 the European Court of Human Rights acknowledged the existence of a right to legal gender recognition under Article 8 of the Convention, in the famous Goodwin v. UK case. Since then, the conditions deemed admissible or not in order to access legal gender recognition and name change have been under scrutiny, and the Court took an important step ahead in 2017, when it held that compulsory sterilization and mandatory medical interventions leading with a high probability to sterility were inadmissible conditions for accessing legal gender recognition (A.P., Garçon, and Nicot v. France). However, other criteria for legal gender recognition remain unclear. Additionally, even when European instance decisively set a principle, the difficulty lies in the implementation on the national level, as the rights of transgender people are far from respected in practice. Legal gender recognition and access to gender confirmation treatment entail particular obstacles for minors, since the debate of whether self-determination regarding legal gender change and access to gender confirmation treatment should prevail over other public and private interests is even more pressing when children are concerned. Many further obstacles remain, notably in the domain of parenthood and employment, access to transition-related treatments, and their reimbursement by health insurance. Additionally, transphobic hate crimes are rarely identified as such by national criminal legislations, and very few states collect statistics on the matter. It remains difficult to draw general conclusions on transgender policies in Europe, as domestic laws are diverse and do not always match with international law, and national practices do not always comply with domestic and international law—with transgender people often being caught in a labyrinth of incongruent rules and practices.
Camille Vallier and Djemila Carron
Since the 1980s, lesbian, gay, bisexual, transgender, and queer (LGBTQ) social movements worldwide have put significant energy into securing relationship rights. In the 1970s, however, the general sentiment in such movements in the Occident had been anti-marriage and anti-nuclear family. This changed in the 1980s due to three factors: the impact of HIV/AIDS, which emphasized how vulnerable same-sex families are; the rise of families headed by same-sex parents who did not have the same protections as their different-sex counterparts; and globalization, which transferred the ideas about same-sex relationships among movements and created energy and useful policy connections. During the 1990s, a wave of marriage alternatives spread around the world, sometimes extended by legislatures and other times by courts. The rise of alternatives has raised these questions: are they a temporary compromise on the path to marriage equality; are they a replacement for marriage that is free of its historical discriminatory heritage; or are they proposing an additional legal institution alongside marriage? In the 2000s and since, marriage equality became realistic and more common as two dozen countries gradually extended marriage rights to same-sex couples, initially in Europe and North America, but later also in Australasia, in the entire Americas, and even—in fewer countries—in Asia and Africa. Incrementalism is the generally accepted theory for why progress occurs in some countries and delays in others. However, scholars have criticized the theory as descriptively inaccurate and, normatively, as portraying marriage as the final frontier for LGBTQ equality—thus contributing to that community’s emphasis on marriage equality to the neglect of other possible advocacy avenues. Further, the incrementalistic account should take into consideration that the path toward recognition is not linear and is international as well as national. Supranational courts have played an important role in the progress toward recognizing same-sex relationships; at the same time, the globalization of LGBTQ relationship rights has also resulted in a strong backlash and in regression in some countries.