Lessons from Denmark?

On Tuesday 21 June 2022, the Equalities, Human Rights and Civil Justice Committee will take evidence from Dr Chris Dietz  of the University of Leeds, whose research addresses the regulation of gender, with a specific focus upon how gender recognition law affects trans embodiment.

A relationship between legal and medical practice?

In our oral evidence to the Committee on 31 May, we mentioned an article by Dr Dietz, discussing the introduction of self-declaration of legal gender in Denmark. Writing from a point of sympathy with this move, he observes:

analysis of the Danish reforms suggests that separating civil and medical regulatory frameworks could also have an adverse effect in countries, like Denmark, which maintain public health care systems. Though separating out civil and medical jurisdictions appeared to make sense to the politicians, civil servants, and medical practitioners professionally involved in the legislative reforms, the same cannot be said for those personally affected by them. Trans and intersex interviewees saw civil and medical regulation as closely interrelated, and not easily disentangled—particularly where recognition from one regulatory system was understood as dependent upon being authorised by the other.

Legislative attempts to liberalise the mind are effectively undermined when processes determining access to body modification technologies are not reformed in kind.

…the article identified numerous problems faced by those who do not identify with the gender that they were assigned at birth in Denmark.

As legislation sought to liberalise people’s minds without considering their embodied concerns, it failed to address issues such as access to health care.

…while self-declaration appears to constitute a model of good legal doctrine when considered at face value, it can be seriously limited when it comes to meeting the substantive needs of trans and intersex subjects. While all Danish residents are now responsible for determining their legal gender status, many have also been left without the necessary support to access the benefits of recognition in practice.

Governing Legal Embodiment: On the Limits of Self‑Declaration (Dietz 2018)

Speaking to the Committee, Lucy Hunter Blackburn said:

Dietz…argues that in Denmark there has been a problem: people feel that the approach has not worked well because of the decoupling. In Denmark, there is now a desire to make access to the medical treatment pathways self-declared, too.

This was picked up again later in the session:

Pam Duncan-Glancy MSP: In particular, Lucy Hunter Blackburn said that in Denmark people were moving to self-declaration for medical treatment. What is the system of medical care in that country in comparison to here? I cannot imagine a situation here in which someone could approach a medical professional and ask them to do something, and they would just do it.

Lucy Hunter Blackburn: It is not so much about what is happening on the ground but about where the discussion and the politics are going. The description of the decoupling is a really interesting piece, and I will send it to the committee. It basically talks about a decoupling of the embodied and the mind. The law has done the head, but the medical system is still asking for a diagnosis for the body, and the complaint is that those are now out of sync. When we consider where the law is going, there is a pressure for the medical system to [follow that] lead.

Self-declaration in Denmark

Self-declaration was legislated for in Denmark in 2014.  As we described in an article in Edinburgh Law Review, a report by the solicitors Dentons described it as one several countries where “changes to the law on legal gender recognition were put through at the same time as other more popular reforms such as marriage equality legislation.” We noted in the same article that:

in Denmark a closed consultation took place with 28 organisations, which elicited 9 responses (we were unable to find evidence of a public consultation)…  the Bill passed through Parliament in 43 days, prompting some members of the Gender Equality Committee to express disquiet at the legislative pace.

Reform Under The Radar: Lessons from Scotland from the Development of Gender Self-Declaration Laws in Europe (Murray, Hunter Blackburn and Mackenzie 2020)

We have been unable to find evidence that any mechanism was put in place for evaluating the impact of the change on the experience of women and girls, for example in relation to single sex services and spaces. This may reflect the wider context: in 2014 the European Agency for Fundamental Rights ranked Denmark as the EU country with the highest occurrence of male physical violence and sexual assault against women. Discussing the hostile reaction in Denmark to this report, Leine, Mikkelsen and Sen (2019) argue that “the invizibilisation of Danish male violence, as well as the projection of sexual aggression onto minority communities, produces a peculiar politics of denial and denialism in Denmark.”

In our response to the last Scottish Government consultation we noted:

There has already been one case reported in Denmark where an individual who had made absolutely no changes from appearing as a conventional male insisted on access to a women’s changing areas, based on having acquired a GRC equivalent by self-declaration, arguing that it was wrong to impose any stereotypical assumptions about appearance on those moved to change their sex in law (link here).

Commenting on the Danish case in a paper that explores the unintended conflicts that can arise from gender self-declaration, Professor Halverson (Faculty of Law, University of Oslo) describes the evident problem (in translation): “An obvious problem is how the biological women in the changing room should be able to know that a person who looks to them like a man is a legal woman. After all, legal men (who look like biological men) have no right to stay there.” (Halvorsen, 2018).

MBM Policy response to Scottish Government consultation (2019)

Conclusion

We assume that some attention may be paid to developments in Denmark as part of this week’s hearing.  As the first European country to introduce self-declaration, we agree it raises some interesting questions, about the process by which the change happened, the extent to which any monitoring to assess impacts was put in place, how it has been used in practice, and what it tells us about how change to the law may generate pressure for medical systems to follow suit.