Are you a boy or a girl? Judicial recognition of trans* and intersex children’s gender identity
Two Dutch non-binary people were able to change the gender marker in their passport from ‘F’ to ‘X’. If a right to recognition of gender identity exists, can trans* and intersex minors claim this right too?
Dutch laws do not provide for a right to change one’s gender marker into an ‘X’, so both Leonne Zeegers in 2018, and Nanoah Struik in 2019, had to take their case to court to obtain the ‘X’ in their passports. While adults in general are able to change their legal gender from ‘M’ to ‘F’ and vice versa, children under the age of sixteen have no such right. In the past few years, however, the call for gender-neutrality has grown louder.
As a reaction to societal developments, and on the basis of the evaluation of the Dutch Transgender Act, the Dutch Minister for Legal Protection assessed that it should be possible to make an exception to the strict age limit of sixteen years. This change would 'strike the right balance between the justified desire to expand the possibilities for change and the extra care required due to the young age of those involved', according to the Minister.
The prospect of this change by the Dutch legislature seems to be in line with the Convention on the Rights of the Child (CRC). Although the CRC does not guarantee the right to recognition of one’s gender identity, in my opinion this right can be argued by virtue of Articles 2 (the right to non-discrimination), 3 (the best interests of the child), 5 (evolving capacities of the child), 8 (right to identity) and 12 (participation principle).
The CRC Committee has confirmed that ‘gender identity’ is part of the non-exhaustive list of non-discrimination rights in Article 2 of the Convention and in Concluding Observations concerning the Netherlands, it has been stated that the State must ensure that transgender and intersex children enjoy the same rights as others.
The best interests of the child should be a primary consideration, and in considering what is actually in the best interests of the child, the Committee declared that their opinion and identity should weigh heavily in this consideration. For trans* and intersex children, this means that when assessing whether a change of their legal gender is in their best interest, account should be taken of their age, gender, maturity and their minority existence.
As for evolving capacities, during early childhood, the identity of children is developed which is dependent on their character, living circumstances, family circumstances, but also their gender identity, according to the CRC Committee in their General Comment no. 7. During puberty, children develop their identity and sexual orientation, and parents should, according to the evolving capacities of their children, enable their children to develop their identity accordingly. The developing capacities in the case of trans* and intersex children therefore concern the decision-making power of children with regard to their gender registration and by whom they are supported in this.
The right to identity of children is guaranteed in the CRC under Article 8. It has been argued both by NGOs and scholars that gender identity and ‘becoming’ are protected within this article. While neuroscience has established that gender identity is no binary matter, and medical data has noted that gender identity can be developed at the age of five, it can be argued that a trans* person’s right to change its legal gender should be protected by this article.
Last but not least, the right to be heard in Article 12 CRC is of immense importance, especially because ‘due weight’ must be given to the child’s views. The lived realities of gender non-conforming children do not correspond with their legal gender markers, while they might have been expressing their wishes, feelings and identity for years. A lot of weight is given to the impact of changing one’s legal gender, because it is assumed that legal change is more difficult than social change, through coming out, and living as themselves.
It seems that the holistic approach of the CRC can offer protection to trans* and intersex children. In view of this, one can only hope that the Dutch Minister for Legal Protection takes these rights into account when establishing the new policy for gender recognition. He stated that ‘the change should be in the best interest of the child', and we’ll hold him to that.