Coercive and Discriminatory: Rethinking the ECtHR's Approach to Legal Gender Recognition's prerequisite of sterilisation
Lead Research Organisation:
University of Birmingham
Department Name: Law School
Abstract
This thesis concerns the role of human rights in safeguarding the dignity of transgender persons, focusing on the issue of non-consensual sterilisation and its attendant pathologisation as an element of abusive legal gender recognition (LGR) regimes. It pursues an original path of inquiry which departs from the conditional approaches adopted by the ECtHR(AP, Garcon & Nicot v France [2017]) by closely examining the case for the application of the absolute prohibition on inhuman and degrading treatment to potentially abusive medical prerequisites to LGR.
The project will evaluate the pathologisation and sterilisation of transgender persons in light of the philosophical principles of dignity and equality which underpin the prohibition of torture and related ill-treatment under Article 3 ECHR and the prohibition of discrimination under Article 14 ECHR. The thesis will first consider LGR regimes which involve the pathologisation of 'gender dysphoria' as a form of 'othering' and, secondly, the intrusive requirement of sterilisation within certain LGR. It will go on to consider whether the pathologisation and sterilisation fall foul of Article 3 ECHR, on its own or in conjunction with Article 14 ECHR (Patel, 2017). The evaluation pursued will employ: (a) rigorous doctrinal analysis, focusing on all relevant jurisprudence on Articles 3, 14 and other rights, and on gender identity and gender expression at the ECtHR; and (b) theoretical engagement with the conceptual underpinnings of this jurisprudence, with particular attention to the principles of dignity, equality, and autonomy. The research pursued will therefore probe the delimitation of Article 3 and revisit its application to invasive or pathologising LGR regimes through the lens of human dignity. It will reconceptualise Article 14 in a way that better captures gender identities which deviate from the conventional binary conceptualisation of gender present within ECtHR case-law(Goodwin v UK [2002]), challenging the comparative methodology of discrimination claims, employing Cartesian principles which validate complex gender identities while allowing Article 14's current formulation to remain intact, a perspective which has not received attention in academic research. Finally, the project will appraise the implications of the analysis offered, in relation to alternative LGR regimes, including in respect of the possibility of self-determined LGR (as adopted by Ireland and Malta).
The project will evaluate the pathologisation and sterilisation of transgender persons in light of the philosophical principles of dignity and equality which underpin the prohibition of torture and related ill-treatment under Article 3 ECHR and the prohibition of discrimination under Article 14 ECHR. The thesis will first consider LGR regimes which involve the pathologisation of 'gender dysphoria' as a form of 'othering' and, secondly, the intrusive requirement of sterilisation within certain LGR. It will go on to consider whether the pathologisation and sterilisation fall foul of Article 3 ECHR, on its own or in conjunction with Article 14 ECHR (Patel, 2017). The evaluation pursued will employ: (a) rigorous doctrinal analysis, focusing on all relevant jurisprudence on Articles 3, 14 and other rights, and on gender identity and gender expression at the ECtHR; and (b) theoretical engagement with the conceptual underpinnings of this jurisprudence, with particular attention to the principles of dignity, equality, and autonomy. The research pursued will therefore probe the delimitation of Article 3 and revisit its application to invasive or pathologising LGR regimes through the lens of human dignity. It will reconceptualise Article 14 in a way that better captures gender identities which deviate from the conventional binary conceptualisation of gender present within ECtHR case-law(Goodwin v UK [2002]), challenging the comparative methodology of discrimination claims, employing Cartesian principles which validate complex gender identities while allowing Article 14's current formulation to remain intact, a perspective which has not received attention in academic research. Finally, the project will appraise the implications of the analysis offered, in relation to alternative LGR regimes, including in respect of the possibility of self-determined LGR (as adopted by Ireland and Malta).
Organisations
People |
ORCID iD |
| Atina Krajewska (Primary Supervisor) | |
| Lee Davies (Student) |