Legal Recognition for Diverse Identities: Gender Equality Beyond the Binary

Across the Council of Europe, 41 State Parties now provide legal recognition for preferred gender. Yet, in all jurisdictions (with specific exceptions), individuals can only be acknowledged as having a ‘male’ or ‘female’ identity. In recent years, leading service providers – including Transgender Europe and the Scottish Trans Alliance – have documented an exponential growth in persons identifying outside ‘man’ and ‘woman’ categorisation. This paper considers the possibility of extending Europe’s gender recognition frameworks to those who live beyond the gender binary, including persons who experience no gender whatsoever.

The paper is divided into four parts, Part I sets out the concept of non-binary identities. It introduces the numerous ways in which individuals experience their non-male and non-female genders, and explores how existing European laws erase gender diversity. Part II investigates public and intra-community hostility to non-binary identities. Dismissed as unreal, childish or political, non-binary individuals are rejected by both the general public, as well as some trans persons, who fear that non-binary advocacy undermines and delegitimises wider trans equality. The paper critically engages with these arguments, and considers whether they are consistent with non-binary lived-realities.

In Part III, the paper explores the difficulty in adopting a workable, generally-applicable framework to recognise persons who are neither male nor female. The fear of othering non-binary persons, an inability to adequately capture “infinite” identities and cultural resistance to de-gendering the law all present obstacles to reform. Finally, using the principle of “reasonable accommodation” as a guide, and critically assessing the on-going necessity of gender in specific areas of the law, Part IV suggests a compromise solution. Conceding the (the often important and positive) role that gender plays in Europe’s legal system, Part IV nonetheless offers a blueprint for greater non-binary inclusion and respect.