Gender recognition and healthcare : a human rights perspective

Abstract

The author sought to survey and provide practical solutions for the realisation of the right to health of transgender persons in three different contexts; legal gender recognition, national healthcare and private health insurance. Within Europe, many States have adopted a medicalised view of transgender identities. This is reflected in legal recognition requirements that consist in sterilisation, other medical treatments and/or a period of real life experience. These requirements, which clearly impinge upon a person’s well-being, where examined under the ECHR. The ECtHR was considered to be a possible protagonist of change due to its hierarchical position as guardian of fundamental human rights within the Council of Europe. A study was undertaken under Article 3 and Article 8 of the ECHR and it was concluded that all requirements examined are in violation of fundamental human rights. Malta, while not falling amongst the States considered to be in violation of human rights under the ECHR due to legal gender recognition requirements, was seen to be falling foul of its obligations under the ICESCR. The ICESCR considers the highest attainable standard of health and the State obligation to take steps towards the realisation of this ideal for all members of society. Malta, has omitted gender affirming treatment from coverage and has not taken sufficient measures to safeguard the right to health of transgender persons within its jurisdiction. The author inquired into the steps that should be taken by Malta. In relation to the duty to protect, it was noted that private health insurance companies specifically exclude gender affirming treatment from coverage. The nature of this exclusion and insurance premiums as applied to transgender persons where questioned. While considering that choice of coverage falls within the remit of freedom of contract, the wide ranging nature and repercussions of the specific exclusion were considered discriminatory.