Abstract
In this article we reflect upon the evolution from the Belgian trans law of 2007 to those of 2017 and beyond, giving adult citizens the possibility to have their self-determined gender legally recognised. The 2019 ruling of the Belgian Constitutional Court, condemning the Belgian State for being discriminatory against gender fluid and gender non-binary persons regarding their legal gender recognition, requires the Belgian government to either add a third legal option or to abolish gender registration altogether. We analyse the definitions of sex and gender that underlie the two trans laws of 2007 and 2017 and the Constitutional Court ruling of 2019 and then confront them with the experiences of trans people based on a national transgender survey (Motmans, Wyverkens, & Defreyne, 2017). The confrontation between legal texts and lived experiences clearly shows the promises and pitfalls states face when striving for gender recognition procedures.
Highlights
In 2007, after ample discussion, Belgium adopted its first trans law, joining the growing list of European countries recognizing trans persons (Motmans, 2011)
The 2017 trans law (Belgian Official Journal, 2017a) changed the established rules in three ways (Verschelden, 2020): An adaptation of the registration of one’s sex on the birth certificate no longer required medical intervention such as gonadectomy or hormonal replacement therapy; the application is based on a simple declaration filed by the applicant; and minors only need the approval of both parents alongside a statement from a youth psychiatrist declaring that they are capable of making such a decision
Belgium is just one of many states confronted with the obligation to put into practice the right to have one’s gender identity recognised and to be identified and treated in accordance with it
Summary
In 2007, after ample discussion, Belgium adopted its first trans law, joining the growing list of European countries recognizing trans persons (Motmans, 2011). The trans law of 2017 dropped the medically binary construct of persons, further disentangled gender and sex, and based the application procedure on self-determination. Notwithstanding this new approach, the LGBTIQ+ organizations Çavaria, Genres Pluriels, and RainbowHouse filed a complaint at the Belgian Constitutional Court for the exclusion of any provision for non-binary or gender fluid people (Cannoot, 2019a). We explore the experiences of trans people based on a national transgender survey (Motmans et al, 2017), analysing their personal positions in the sex/gender realm, and the impact thereof on legal gender provisions. It is important to notice that in both Dutch and French, sex and gender are two distinct words, and legal texts most often use ‘sex’ to refer to the sex assigned at birth, which, in Belgium, is limited to male or female options only
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