10.6092/issn.2531-6133/18945
Non-Binary gender identity is slowly growing in visibility across the globe. In at least seven Member States of the Council of Europe, some judicial, administrative or legislative bodies have already started organising a form of legal recognition for gender identities outside of the binary through the creation of ”third” gender categories and “X” gender markers. This trend is growing fast and the European Court of Human Rights should pronounce itself soon on a potential positive obligation to organize such recognition in the case of Y v. France (pending). In this context, this research reflects on the foundations and flaws of the organisation of gender registration in the Council of Europe Member States. The main focus in this sense is put on the human rights law framework of the Council of Europe and specifically the right to respect for private life (Article 8 of the European Convention on Human Rights (E.C.H.R.)), the prohibition of inhuman and degrading treatment (Article 3 E.C.H.R.) and the freedom of expression (Article 10 E.C.H.R.) in light of the prohibition of discrimination (Article 14 E.C.H.R.). Furthermore, it reflects critically on the recent legal developments that led to the use of “X” gender markers to highlight their inadequacy. In doing so, it points towards the possible abolition of gender registration – or at the very least its suppression from identity documents.
application/pdf
2531-6133
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Elias Tissandier-Nasom
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
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Effective Recognition and Protection of Non‐Binary Gender Identities in the Council of Europe Framework
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2024-01-23
2024-01-18
2023-11-02
2024-01-23
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UBLR
Elias Tissandier-Nasom
2023
10.6092/issn.2531-6133/18945
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Effective Recognition and Protection of Non‐Binary Gender Identities in the Council of Europe Framework: A Critical Analysis of Third Gender Marker Options From a Human Rights Law Standpoint
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llVOLUME 8                                   llISSUE 2                                     NOTES



                             UNIVERSITY OF BOLOGNA LAW REVIEW
                             https://doi.org/10.6092/issn.2531‐6133/18945

              Received: 18 Feb. 2023 | Accepted: 6 Apr. 2023 | Published: 23 Jan. 2024

                                                  A

  Effective Recognition and Protection of Non‐Binary Gender
         Identities in the Council of Europe Framework

 A Critical Analysis of Third Gender Marker Options From a Human Rights
                                         Law Standpoint


                                     ELIAS TISSANDIER-NASOM
Elias Tissandier-Nasom is a PhD candidate at Leiden University (Netherlands). His research
interests revolve around issues of children’s rights, LGBTQIA+ rights, health and asylum law. He
obtained a bachelor’s degree from Sciences Po Paris followed by an LLM in Public International
Law and an advanced LLM in International and European Human Rights Law from Leiden
University (Netherlands).



 @ elias.tissandier@gmail.com
  ID
       0000-0002-8112-1140


                                             ABSTRACT

Non-Binary gender identity is slowly growing in visibility across the globe. In at least seven
Member States of the Council of Europe, some judicial, administrative or legislative bodies have
already started organising a form of legal recognition for gender identities outside of the binary
through the creation of ”third” gender categories and “X” gender markers. This trend is growing
fast and the European Court of Human Rights should pronounce itself soon on a potential positive
obligation to organize such recognition in the case of Y v. France (pending). In this context, this
research reflects on the foundations and flaws of the organisation of gender registration in the
Council of Europe Member States. The main focus in this sense is put on the human rights law
framework of the Council of Europe and specifically the right to respect for private life (Article 8
of the European Convention on Human Rights (E.C.H.R.)), the prohibition of inhuman and
degrading treatment (Article 3 E.C.H.R.) and the freedom of expression (Article 10 E.C.H.R.) in
light of the prohibition of discrimination (Article 14 E.C.H.R.). Furthermore, it reflects critically
on the recent legal developments that led to the use of “X” gender markers to highlight their
inadequacy. In doing so, it points towards the possible abolition of gender registration – or at the
very least its suppression from identity documents.


                                             KEYWORDS
               Non-binary; Transgender; Legal Gender Recognition; LGBTQ+; Human Rights




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llVOLUME 8                                     llISSUE 2                                        NOTES



                                       EDITORIAL NOTE
  Although this manuscript meets the word criteria for the inclusion in the “Articles and Essays”
             Section, it has been placed in the “Notes” Section for Editorial reasons.
        Such decision aligns with our Editorial Guidelines, which advocate for a nuanced
                       approach to content classification and presentation.


                                         TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    104
        Setting the Scene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     105
        Structure of the Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     106
1. Thinking of Gender Identity and the Binary as a Crisis . . . . . . . . . . . . . . . . . . . .       106
        1.1. Defining Gender Outside of the Binary . . . . . . . . . . . . . . . . . . . . . . .        107
        1.2. The Need for Specific Recognition of Non-Binary Identities . . . . . . . . . . . .         113
           1.2.1. Legal Recognition as the Starting Point for Protection . . . . . . . . . . . .        113
           1.2.2. Divergence and Convergence With Already Established Rights Movements .                115
           1.2.3. Specific Harm Suffered . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      117
2. The Inclusion of Non-Binary Claims to Recognition and Protection Under the Council of
   Europe Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       118
        2.1. A Right to Non-Binary Legal Recognition? . . . . . . . . . . . . . . . . . . . . .         119
           2.1.1. Established Framework and Legal Sources of Rights and Protection . . . . .            119
           2.1.2. The Christine Goodwin v. the United Kingdom Case and Subsequent Case-
                 Law: Implications for Non-Binary Legal Recognition . . . . . . . . . . . . .           123
        2.2. Other Potential Avenues: Articles 3 and 10 of the European Convention on
           Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       126
           2.2.1. Qualifying Lack of Legal Gender Recognition Procedures as Cruel, Inhuman
                 and Degrading Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . .        127
           2.2.2. Gender Expression and the Right to Freedom of Expression . . . . . . . . .            130
           2.2.3. Current Stance of the Court: The Return of the “European Consensus”
                 Argument and the Move Away From Effective Protection of L.G.B.T.Q.I.A.+
                 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   134
3. Organising Recognition: the “X” Gender Marker as a Missed Opportunity . . . . . . . . .              135
        3.1. Practicalities of National Frameworks: Exposé of Legislation and Case-Law in
           Force in Council of Europe Member States . . . . . . . . . . . . . . . . . . . . . .         136
           3.1.1. Weak Link Between Bodily Sex Characteristics and Legal Gender: The
                 Netherlands, Iceland, and Belgium . . . . . . . . . . . . . . . . . . . . . . .        136
           3.1.2. Weak Link Between Bodily Sex Characteristics and Legal Gender but
                 Incomplete Implementation: Malta and Denmark . . . . . . . . . . . . . . .             140
           3.1.3. Close Link Between Bodily Sex Characteristics and Legal Gender: Germany
                 (Until 2022) and Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     141
           3.1.4. Comparative Table: Recognition of a “Third” Gender Category in Study
                 Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    144
        3.2. The “X” Gender Marker as A Missed Opportunity in Consecrating Recognition
           and Protection for Non-Binary Individuals . . . . . . . . . . . . . . . . . . . . . .        145
           3.2.1. Overall Inappropriateness . . . . . . . . . . . . . . . . . . . . . . . . . . .       145
           3.2.2. Further Risks and Counter-Productiveness . . . . . . . . . . . . . . . . . .          149
        3.3. Results of the Survey Carried on During This Research . . . . . . . . . . . . . .          150
4. Enacting the End of Gender on Identity Documents or as a Legal Category . . . . . . . . .            152
        4.1. Removing Gender From Identity Documents or Registries . . . . . . . . . . . . .            153
        4.2. Considering the Risks and Potential Obstacles to the Suppression of Gender From
           Registration Systems or Identity Documents . . . . . . . . . . . . . . . . . . . .           158
           4.2.1. Legal Implications: Data Collection and Cross-Border Movements . . . . . .            158


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llVOLUME 8                                    llISSUE 2                                                    NOTES



          4.2.2. Overcoming the Risk of Gender-Blind Laws . . . . . . . . . .          .   .   .   .   .   .   .   .   160
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   .   .   .   .   .   .   .   .   163
ANNEX 1. Results of the Questionnaire Carried Out in the Scope of This Study           .   .   .   .   .   .   .   .   165
ANNEX 2. National Legislation Quotes . . . . . . . . . . . . . . . . . . . . . .       .   .   .   .   .   .   .   .   167




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        INTRODUCTION

In a letter of the 3rd of July 2020, the Dutch Government announced that it would remove
the mention of gender from identity documents (not including passports) by 2024/2025.1
This development comes after over a decade of national developments regarding the
recognition and protection of gender identities outside of the male and female binary.
Indeed, starting in 2014 with Denmark, a total of seven European countries have now
recognised a “third” legal gender category taking the form of an “X” gender marker
added to the pre-existing “M” and “F” options.
            This article approaches those developments intending to expose their inadequacy
in trying to create effective recognition and protection for non-binary persons in Europe.
In doing so, it questions the establishment of the gender binary in European societies to
expose its inconsistency and its detrimental consequence on the respect and inclusion
of all in our societies. Moreover, it uses those conclusions to argue for the fundamental
character of legal recognition in accessing protection.
            Building on this, it presents the existing legal framework at the European level,
focusing mostly on the European Convention on Human Rights and the subsequent case
law of the European Court of Human Rights. More specifically, it argues that the existing
approach to gender identity under the right to respect for private life (Article 8 E.C.H.R.)
is inappropriate.         Additionally, it limits the development of legal recognition and
protection for non-binary individuals. This Chapter then proposes different avenues in
defining the rights of recognition of non-binary persons: the right to not be subjected to
inhuman or degrading treatment (Article 3 E.C.H.R.) and the freedom of expression
(Article 10 E.C.H.R.).
            Then, it introduces the details of all seven European states having created a “third”
legal gender category to analyse the causes of those developments and the shortcomings
they present for the recognition and protection of non-binary individuals in practice.
            Finally, this thesis proposes an alternative to the “X” gender marker in the
abandonment of gender as a legal category altogether, or less drastically, the
suppression of gender markers on identity documents. This last option being the one
recently endorsed by the Dutch and Belgian Governments, this thesis provides an



1
    See Ingrid van Engelshoven, Ministerie van Onderwijs, Cultuur en Wetenschap [Ministry of
    Education, Culture and Science], Tweede Kamer Voortgangsbrief aanpak onnodige sekseregistratie [House
    of Representatives Progress letter approach unnecessary sex registration], Rijksoverheid (July 7, 2020),
    https://www.rijksoverheid.nl/documenten/kamerstukken/2020/07/03/tweede-kamer-voortgangsbrief-
    aanpak-onnodige-sekseregistratie (Neth.).


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analysis of the risks attached to such a development while also exposing the large
benefits it would bring to the trans*, non-binary and inter* communities.



      SETTING THE SCENE

             Difference is as natural as breathing.            Infinite varieties exist of
             everything under the sun.              Civilised society has a duty to
             accommodate suitably differences among human beings. Only in this
             manner can we give due respect to everyone’s humanity. No one
             should have [their] dignity trampled upon, or human rights denied,
             merely on account of a difference, especially one that poses no threat
             to public safety or public order.2

Those words pronounced by the Caribbean Court of Justice in 2018 set the perfect
introduction to this research in establishing the importance of fostering inclusive
societies. Such an outset can lead to a myriad of discussions, from the denunciation of
racist biases to the call for the of Lesbian, Gay, Bisexual, Transgender, Questioning or
Queer and Intersex [hereinafter L.G.B.T.Q.I.*] identities in public spaces. It is through this
diversity approach that this research will discuss the inclusion of non-binary gender
identities within the protective system of the Council of Europe and its Member States. It
presents itself as a response to the recent developments in seven Member States which
created legal frameworks to recognise non-binary gender identities through the creation
of a “third” or “X” gender marker. This development stems from the long-term fight for
the de-medicalisation of trans* identities through the condemnation of sterilization and
other medical requirements for legal gender recognition procedures.                          In slowly
separating the conception of one’s gender identity from their biological body and sex
characteristics, the legal sphere is in the process of creating more opportunities for the
inclusion of persons who do not fit the gender binary altogether. Non-binary persons,
who do not identify as male or female but rather as an in-between, a combination of both
or neither, are thus for the first time in European states given some form of legal
recognition. While such a development is a step to be celebrated in the way it has raised
awareness and given visibility to the non-binary community, it is flawed in multiple ways
and national systems have implemented very different procedures that vary in terms of
inclusivity.      To this end, this research will ask the following questions: Are third
gender-marker options (X), introduced by various European states, providing effective

2
    Mc Ewan et. al. v. Advocate General of Guyana, Caribbean Court of Justice [CCJ], ¶ 1 (Dec. 13, 2018).
    (pronouns were adapted from “his or her” to “their” in the spirit of gender inclusivity).


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                         COUNCIL OF EUROPE FRAMEWORK


recognition and protection for non-binary individuals in light of the European
Convention on Human Rights [hereinafter E.C.H.R.] framework? And if not, what better
(more sensitive and inclusive) legal approaches at the national level, supported by the
European level, can be recommended when analysing the issue through a queer lens?



   STRUCTURE OF THE RESEARCH

To explore this issue, I will first set the ground by showing the nuanced character of the
concept of gender. Following this, the second Chapter will explore the importance of the
legal recognition of non-binary gender identities to ensure protection for all. Then, I will
detail the legal framework relevant to this case study by first looking at the existing
jurisprudence of the European Court of Human Rights [hereinafter E.Ct.H.R.] under the
right to private life. This approach will be completed by an analysis of other potential
avenues for the recognition of non-binary gender identities under the European
Convention, namely the prohibition of degrading and ill-treatment and the freedom of
expression taken in conjunction with the principle of non-discrimination. Following
this, I will discuss the practicalities of the various “X” gender marker systems existing in
European states and the inadequacies and missed opportunities inherent to them.
Finally, I will put forward the alternative option of abolishing gender on identity
documents or as a legal category altogether. This research will conclude with an analysis
of the impact of queer identities, such as non-binary gender identities, can have in
providing a more inclusive and efficient system of recognition and human rights
protection.




    1. THINKING OF GENDER IDENTITY AND THE BINARY AS A CRISIS

As an introduction to this study, this first Chapter aims to provide definitions for its
subjects (non-binary individuals) and the dynamics at play around their existence in our
current social constructions. Moreover, this Chapter’s purpose is to provide arguments
supporting the necessity of legal recognition of non-binary persons as separate subjects
of law in ensuring the creation of appropriate protective measures. Hence, it will first
provide a definitional analysis of non-binarity, gender identity, and the gender/sex
conceptual division and its weaknesses.       Then, it will assess the need for specific
recognition as a first step towards effective protection through an assessment of the


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particularity of non-binary issues, including the convergence and divergence with
already existing rights movements and an analysis of the specific harm suffered by
non-binary persons.



    1.1. DEFINING GENDER OUTSIDE OF THE BINARY

Thinking about the binary is an exercise that challenges much more than the mere
gender binary of male and female. Or rather, more than the direct influence of this
binary system on gender identity and gender policies, but on the whole of our social
institutions. For instance, there is a strong binary incentive in establishing gender
identity and sex as well as sexual orientation. Where gender and sex have been divided
between female and male, sexual orientation relies on a similar binary opposition
between heterosexual and homosexual. Deconstructing such binaries has been the work
of human rights scholars and defenders for decades and has successfully resulted in the
legal recognition, for example, of bisexuality. Similarly, the last decade has seen more
tolerance and legal recognition regarding the status of inter*3 persons as a remarkable
disruption of the binary of biologically assigned sex.4 However, when it comes to gender
within the European territories and others, there is a serious lack of awareness or any
meaningful socio-legal development in breaking the male/female binary. In this context,
non-binary individuals, whose experience of gender does not align with the gender,
usually male or female,5 that was assigned to them at birth,6 are significantly left out.
3
  I will use the term “inter*” in this redacted way all across this research as it is more inclusive than others
  and has been reclaimed by the community.
4
  United Nations [hereinafter U.N.] and regional experts have defined inter* in the following terms:
               Intersex people are born with physical or biological sex characteristics (such as
               sexual anatomy, reproductive organs, hormonal patterns and/or chromosomal
               patterns) that do not fit the typical definitions for male or female bodies. For some
               intersex people these traits are apparent at birth, while for others they emerge later
               in life, often at puberty.
  Office of the High Commissioner for Human Rights, Intersex Awareness Day – Wednesday 26 October.
  End violence and harmful medical practices on intersex children and adults, U.N. and regional experts
  urge, OHCHR (Oct. 24, 2016), https://www.ohchr.org/en/2016/10/intersex-awareness-day-wednesday-26-
  october?LangID=E&NewsID=20739.
5
  This is not to exclude inter* individuals whose experience of gender is fundamentally impacted by the
  non-binarity of their “primary and secondary sex characteristics” as defined (often wrongly) by medical
  professionals upon birth.
6
  See e.g. the definition provided by the U.N. High Commissioner for Refugees [hereinafter U.N.H.C.R.],
  Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or
  Gender Identity within the Context of Article 1A (2) of the 1951 Convention and/or Its 1967 Protocol Relating
  to the Status of Refugees, U.N. Doc. HCR/GIP/12/09 (Oct. 23, 2012).
               Transgender describes people whose gender identity and/or gender expression
               differs from the biological sex they were assigned at birth. Transgender is a gender
               identity, not a sexual orientation and a transgender individual may be heterosexual,
               gay, lesbian or bisexual. Transgender individuals dress or act in ways that are often
               different from what is generally expected by society on the basis of their sex assigned
               at birth. Also, they may not appear or act in these ways at all times.

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This is even furthered by the influence of the binary system even within the trans*
community. In this sense, the trans* community does not simply include binary trans*
individuals, meaning persons who identify as the opposite gender according to the
male/female socially enforced gender binary. Rather, it equally includes persons whose
gender identity does not fit this binary division, qualified as non-binary persons. The
non-binary community itself, as a sub-part of the trans* community, is inherently
diverse as well – ranging across a spectrum that goes from male to female, but also
including individuals whose gender identity is not fixed and can vary over time
(genderfluid) as well as individuals whose identity is outside the spectrum altogether
(agender).      Following this, there are various experiences of what it means to be
non-binary. Some individuals will feel the need to change their names, and appearance,
or else, while others will not. Similarly, some non-binary persons might experience
physical gender dysphoria7 and undergo surgeries and hormone replacement treatment
to feel more comfortable in their bodies while others will not.8
Before diving in depth into the specificities of legal recognition and protection of
non-binary individuals, it is necessary to establish the analytical framework for this
study. There are no legally established definitions of non-binarity. However, falling
under the broader umbrella of gender identity, it is relevant to note the largely accepted
definition of gender identity within the legal sphere contained in the Yogyakarta
Principles and expressed through the following words as a first foundation.

           Gender Identity is understood to refer to each person’s deeply felt
           internal and individual experience of gender, which may or may not
           correspond with the sex assigned at birth, including the personal
           sense of the body (which may involve, if freely chosen, modification
           of bodily appearance or function by medical, surgical or other means)
           and other expressions of gender, including dress, speech and
           mannerisms.9

Incidentally, it is interesting to note that this definition does not include a binary aspect
of gender and is therefore useful in the definition of non-binary issues.

7
  Gender dysphoria refers to the physical and mental discomfort linked to the gender assigned at birth
  for a trans* person. It can present both in relation to the individual’s relations to their body and
  in their social relations and external perception of their gender. See generally: DILCRAH & Transat,
  Comprendre Les Transidentités: Un Guide à l’usage Des Personnes Cis 13 (2021), https://www.dilcrah.fr/wp-
  content/uploads/2022/02/GUIDE_COMPRENDRE-LES-TRANSIDENTITES-TRANSAT-NUMERIQUE-27-12-
  2021.pdf (Fr.).
8
  See, e.g., Kylin Camburn, 9 young people explain what being non-binary mean to them, GLAAD (July 14, 2019),
  https://legacy-glaad.org/amp/9-young-people-explain-what-being-non-binary-means-them.
9
  Yogyakarta Principles, Mar. 2007.


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From an analytical point of view, feminist studies and gender studies have theorized
“gender” as an alternative to the previously dominant concept of “sex”.10 In doing so, a
division was established between sex, as a biological, unchangeable, attribute of the
person and gender, as a socially constructed and performed sense of internally felt
connection to one’s identity.11 In a sense, gender has been understood as the social
translation of sex. This is still the position adopted by the World Health Organization12
and the Council of Europe.13 In a time where non-binary individuals are gaining more
visibility in mainstream media as well as in the political and legal sphere, it is necessary
to rethink this division. Following the position of Judith Butler, it can be argued that, if
gender is the social translation of sex, once one is born and assumes a social character
and thus, a gender, sex is deprived of all meaning or better, absorbed by gender.14
           Moreover, one may also argue that sex itself is a social construct. Indeed, the
strict binary of bodies is not rooted in a biological reality. All bodies are different. Even
within bodies that fit the established list of criteria for “male” or “female” bodies,
variations appear in all forms, hormone levels, bone density, weight, height, and more. It
can be defended that such categories are broad as they are used to encompass large
groups of individuals and thus allow for such fluidity in the application of its criteria.
However, going further, it appears clearly that, with the existence of inter* individual,
this binary is not only arbitrary but also inefficient in categorizing the reality of the
variety of human sex. Furthermore, the existence of trans* individuals’ capacity to
modify their bodies to fit a sex category that they were not assigned at birth shows that
such categories are permeable. This ties back to Butler’s argument that upon birth the
concept of gender absorbs the concept of sex. Indeed, if one can change their bodies to
match their gender identity when discrepancies appear, then sex and gender can be
interchangeable. Additionally, it’s worth mentioning that in certain cases, transgender
individuals may experience fluctuations in hormone levels even prior to initiating
hormone replacement therapy.15
           However, it is necessary to limit the debate on the division of sex and gender and
their opposition to some extent. Such discussions are necessary to understand the roots

10
   See generally SIMONE DE BEAUVOIR, THE SECOND SEX (1949).
11
   See generally Judith Butler, Sex and Gender in Simone de Beauvoir’s Second Sex, YALE FRENCH STUD. 35 (1986).
12
   See World Health Organization, Gender and Health, https://www.who.int/health-topics/gender#tab=tab_1.
13
   See Eur. Consult. Ass., Gender Equality Commission Commission pour l’égalité de genre, Gender Equality Glossary 10,
   20 (Mar. 2016). See also Eur. Consult. Ass., Convention on preventing and combating violence against women and
   domestic violence, art. 3 (2011).
14
   See JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF “SEX” (1993).
15
   These changes can occur as a response to their socially experienced gender identity. See e.g.; Ai-Mn
   Bao & Dick Swaab, Sexual differentiation of the human brain: Relation to gender identity, sexual orientation and
   neuropsychiatric disorders 32 FRONTIERS IN NEUROENDOCRINOLOGY 214 (2011).


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of identity and the exclusion of those who do not fit the socially built binary system.
Nevertheless, it should not impact the legal framework. In this sense, this everlasting
debate has created a focus on defining the exact substance of both of those terms and is
driving the legal community away from the necessary discussion on what the definitions
should be in a context-specific, protection-oriented, legal framework.16 In this respect, it
is interesting to note that, within the Rome Statute, the only ground for persecution
defined under Article 7 is gender and yet gender persecution is the least developed
framework.17 By taking the front stage, those approaches to gender and sex have put the
individual in the shadow, erasing that there are human beings to whom the definitions
of those terms do not matter as much as they require active protection against
discrimination, both directly and indirectly, based on their gender identity. Defining
gender and sex is not only unachievable as it differs in experience for every individual,
but also not necessary to the development of effective protection for non-binary
individuals. Moreover, it might even create obstacles as there are movements utilising
the distinction between sex and gender as a tool to object to the recognition of
non-binary identities.18 This is made evident by the push of Trans* Exclusive Radical
Feminists [hereinafter T.E.R.F.s] for a separate definition of sex and gender to limit the
rights of trans* persons whose sex will then be considered to be the one they were
assigned at birth rather than the one they are socially living as, regardless of their
biological status. Such an argument is often rooted in the need to protect “real” women
against the intrusion of men in their safe spaces. In this sense, it argues that, contrary to
Simone de Beauvoir’s famous saying, one does not become a woman but as to be qualified
as one upon birth. Such a movement is fundamentally dangerous as it not only argues for
the discrimination, if not persecution, of gender non-conforming individuals. This is a
16
   See Jessica A. Clarke, They, Them, and Theirs, 132 HARV. L. REV. 894, 933 (2019).
17
   See recent developments within the International Criminal Court with the creation of a Policy Paper on
   Gender and Sexual Based crimes in 2014 and the ongoing work on a report on gender persecution in 2022
   Press Release, Int’l Criminal Court, The Office of the Prosecutor launches public consultation on a new policy initiative
   to advance accountability for Gender Persecution under the Rome Statute, ICC-CPI-20211220-PR1637 (Dec. 20, 2021).
18
   On the exclusion of non-binary individuals by other members of the trans* communities, see specifically
   the argument made that when entering mainstream societies, minority groups are still held to mainstream
   standards hence have to comply with what is deemed acceptable by society as a whole. This creates a “trans
   enough” narrative that is inherently harmful to non-binary identifying individuals by its focus on medical
   transition and compliance with binary gender norms. See Luke Armitage, Explaining Backlash to Trans and
   Non-binary Genders in the Context of UK Gender Recognition Act Reform, J. INT’L NETWORK FOR SEXUAL ETHICS &
   POL. 11, 25-26 (2020). See similarly the example of the T.E.R.F.S.who do not recognise the existence or the
   legitimacy of trans* individuals identities by arguing that the utilization of gender as a concept creates
   a risks for “real” women whom are defined by their biological sex only. The idea that comes back in those
   exclusionary movements is the utilization of the socially constructed aspect of gender in order to discredit its
   validity. In this sense, they rely on the immovability of sex as a “determinate biological” characteristic. Since
   most non-binary individuals were biologically assigned as either male or female at birth, those movements
   tend to negate their very existence. When they do, non-binary identities are often approached as “non-
   threatening” to the established binary with no real tangible existence other than being a political statement.
   See also Dianne Otto, Queering Gender [Identity] in International Law, 33 NORDIC J. HUM. RTS. 299 (2015).


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perfect example of how the socially constructed binary, would it be understood in terms
of gender, sex or both as one, is harmful. Indeed, this movement does not solely attack
the rights of trans* and non-binary individuals but also turns a blind eye, or sometimes
explicitly supports, the continuation of sex reassignment operations on inter* infants
and children to attempt to have their body fit the list of binary sexual characteristics
that are decided to be needed to fit the boxes of male or female. Such operations are,
most times, unnecessary to the good development of the child and have been defined as
torture by multiple U.N. bodies including the Committee Against Torture.19 Moreover,
this movement equally harms the development of women’s rights as it tends to limit the
definition of “woman” to biological characteristics.
           Having established that the binary division of sex and/or gender is socially
constructed. It is fundamentally relevant to reflect on the origin of such a construction
to understand its goal and socio-historical meaning. While some argue that it forms
through the self, as a direct expression of one’s internal feeling of identity, it is
impossible to disconnect it from gender norms that were themselves put into existence
by multiple sociological and anthropological, hence artificial, dynamics. Thus, gender
would better be understood as the process through which an individual constructs their
identity, not as an independent and internal process, but rather as interactive
developments of the self in reaction to pre-established language and norms.20 In this
sense, gender is fundamentally linked to the development of culture. Putting this in a
more practical context, the experience of gender in different parts of the world is
drastically different. Europe, built on strong patriarchal structures, relies on a binary
that opposes the man, providing and strong, to the woman, caring and inferior.21 In that
context, gender identities that diverge from the norm are repressed. This is theorized by
Butler in putting forward the idea that, in such societies, gender is built not as a
characteristic in itself but as an oppositional mechanism. In this sense, a woman is a
woman because she is not a man and vice-versa. Thus, the construction of gender is
enacted through exclusionary means.22 Similarly, she argues that the individual builds
their identity within a system that strictly regulates the human in opposition to the
inhuman. Therefore, “it is not enough to claim that human subjects are constructed, for
the construction of the human is a differential operation that produces the more and the

19
   See 50 UN Reprimands for Intersex Genital Mutilation – and Counting . . ., STOPIGM.ORG (Oct. 26, 2016),
   https://stopigm.org/iad-2016-soon-20-un-reprimands-for-intersex-genital-mutilations/.
20
   See generally Judith Lorber, The Social Construction of Gender, in THE INEQUALITY READER 318 (David B. Grusky &
   Szonja Szelenyi eds., 2018).
21
   See 488 ROBERT BAHLIEDA, The Legacy of Patriarchy, in THE DEMOCRATIC GULAG: PATRIARCHY, LEADERSHIP AND
   EDUCATION 15 (2015) (Switz.).
22
   See Butler, supra note 14.


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less “human”, the inhuman, the humanly thinkable”.23 This analysis is fundamental to
understanding the position of non-binary individuals who actively diverge from this
system. In doing so, rather than being perceived as simply breaking a strict gender
binary norm, they are implicitly but automatically stripped of their “human” capacity.
This is especially striking when compared to cultural approaches that recognise
individuals existing outside of the binary as almost divine figures such as the position of
Two-Spirit individuals in indigenous tribes.24 In this sense, through those processes,
non-binary identities can be said to have been rendered “culturally unintelligible” to
mainstream Western and European societies.25 In this sense, when legally approached,
non-binary identities tend to not be truly understood for what they mean to the
individual in question but rather as a, sometimes acceptable, modern fad. This might be
due to the erasure of non-binary individuals in Western history.26 It can then be argued
that non-binary individuals are not approached as an in-between in the gender binary
but rather as either under or above it – either as less human or as divine figures.
           The consequence of this is fundamental to the further study of the approach
adopted by European states in building recognition and protection for non-binary
persons.       As will be exposed in further Chapters, the inherent binary imposed on
individuals in the construction of their inner self is omnipresent in the understanding of
non-binary identities by governments and is heavily reflected in their choice of policy.
Moreover, the very choice of recognition and protection policies, especially the “X”
gender marker itself will be demonstrated to be deeply influenced by the view of
non-binary individuals as less-worthy subjects of society.27




23
   Id.; See also Armitage, supra note 18, at 15.
24
   See      Native      Center      for   Behavioral       Health,      Native    LGBTQ+/      Two     Spirit   People,
   https://www.nativecenter.org/_files/ugd/e6acf4_5b2045f52b9247bf86205e2263b5c434.pdf (last visited
   Dec. 8, 2023).
25
   See Judith Butler, Doing Justice to Someone: Sex Reassignment and Allegories of Transsexuality, in THE TRANSGENDER
   STUDIES READER 183 (Susan Stryker and Stephen Whittle eds., 2006).
26
   Western history has long erased the existence of gender diverse persons. A fundamental example of this is
   the very low number of reports on the fate of trans* and gender non-conforming individuals during World
   War II. It is mistaken to take from this that they were not targeted, arrested, or killed by Nazi forces. However,
   it is interesting to reflect on the complete invisibilisation of their existence, when it is evident that they were
   indeed targeted, either as homosexuals for most female presenting individuals, or sometimes even as spies
   for male presenting persons. This is developed further in Lisa Davis, Dusting Off the Law Books: Recognizing
   Gender Persecution in Conflicts and Atrocities, 20 NW. J. HUM. RTS. 1, 29-35 (2021).
27
   See infra Chapter 2.


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     1.2. THE NEED FOR SPECIFIC RECOGNITION OF NON‐BINARY IDENTITIES

     1.2.1. LEGAL RECOGNITION AS THE STARTING POINT FOR PROTECTION

Elaborating on the previous observation, legal recognition of non-binary identities is
fundamentally necessary to bring non-binary individuals within the scope of human
understanding. It is the only way to, in a legal sense, push for the integration of those
persons into society. However, just as will be developed later in this paper, gender
recognition does not solely imply the need for a third gender marker but rather a
recognition of the fluidity of gender by the state. In this sense, it could also be attained
by the suppression of gender as a legal category altogether if accompanied by a
comprehensive anti-discrimination approach that includes non-binary identities. Doing
so would allow for the further development of a protection system adapted to their
needs. In this sense, you cannot protect what you do not recognise as existing.
          The importance of legal recognition can be shown by analogy with other rights
movements. For instance, the legal recognition of women as a separate group and as
specific subjects of law was the momentum needed for the expansion of the protection of
women’s rights. The same goes for the rights of lesbians and homosexuals. In this sense,
legal recognition, by adopting a rights discourse, allows for the creation of specific rights
systems in accordance with the particular characteristics and associated needs of said
groups.28 We note for example the large impact of the Convention on the Elimination of
all forms of Discrimination Against Women [hereinafter C.E.D.A.W.] on the rights of
women and the way in which they are treated in societies.29 Instruments like this one, or
case law of international and regional human rights bodies, have helped shape the social
recognition of minorities such as women, lesbian, gay, and bisexual individuals, ethnic
and racial minorities, disabled persons, etc, by creating a framework of legal recognition
as specific and complete subjects of law with their full entitlement to protection of their
human rights. Therefore, legal recognition can be envisaged as a way to pursue change
and palliate to systematic historical neglect of marginalised groups.30
          The consequences of the absence of legal recognition can be more clearly
illustrated through the study of the case of homosexual persons which can easily be
analogically applied to the situation of non-binary individuals – and any other minority
28
   See Mahnaz Afkhami, Identity and Culture: Women as Subjects and Agents of Cultural Change, in FROM BASIC NEEDS
   TO BASIC RIGHTS: WOMEN‘S CLAIM TO HUMAN RIGHTS (Margaret A. Schuler. ed., 1995).
29
   For more detail on the impact of C.E.D.A.W., see Global Success: CEDAW Women’s Rights Treaty, NATIONAL
   ORGANIZATION FOR WOMEN, https://now.org/resource/global-success-cedaw-womens-rights-treaty/ (last
   visited Nov. 19, 2023).
30
   See José Reinaldo De Lima Lopes, The Right to Recognition for Gays and Lesbians, INT’L J. ON HUM. RTS. 61, 72
   (2004).


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group. Lima Lopez, in a study on the right to legal recognition, notes two distinct
consequences of such a denial: physical violence meaning the absence of protection
against physical acts of violence against a person, and non-physical violence which can
be separated into two forms. First, it impacts the individual as an “exclusion from the
sphere of rights” which in itself denies the individual access to their personal and social
autonomy as well as complicates their capacity to interact with others. Second, it causes
a strong form of disrespect which is then easily translated into discriminative, degrading
treatment of members of those particular social groups.31 Thus, the absence of legal
recognition – or even more strongly, the explicit denial of legal recognition – is a strong
incentive for further exclusion and discrimination by society as a whole: “[U]nder the
silence of the legal system. . .an intolerance is cultivated”.32
          Putting this back in perspective of the study of non-binary persons’ claim for
legal recognition, it appears that, when put into legal language, the framing of
non-binary individuals as inhuman in opposition to a human binary, can be translated
into a distinction between deserving and undeserving subject of law.
          From a legal perspective within the Council of Europe, legal recognition has been
flagged as a necessary step in preserving and protecting the human rights of “trans and
gender diverse persons”.33 The U.N. Independent Expert on Sexual Orientation and
Gender Identity recognises that the denial of legal recognition of gender creates a
negative environment in all aspects of life for persons concerned, ranging from the right
to health, and housing to freedom of movement and residence. Furthermore, it fuels
discrimination and violence against trans and gender-diverse persons – hence including
non-binary persons.34 Moreover, the U.N. Independent Expert includes in their attached
Recommendations, the necessity to organise legal recognition for non-binary identities
specifically.35




31
   Id. at 70-71.
32
   Id. at 74.
33
   “Trans and gender diverse” is the term adopted by the European Commission to refer to trans* and non-
   binary persons. It is necessary to note that this formulation is inappropriate as gender diverse does not have
   a clear meaning and in itself would involve trans* persons both binary and not. See European Commission,
   Directorate-General for Justice and Consumers, Legal Gender Recognition in the EU - The journey of trans
   people towards full equality 173-96 (2020).
34
   See The Struggle of trans and gender diverse persons, Office of the High Commissioner for Human Rights (2022),
   https://www.ohchr.org/en/special-procedures/ie-sexual-orientation-and-gender-identity/struggle-
   trans-and-gender-diverse-persons.
35
   Id.


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     1.2.2. DIVERGENCE AND CONVERGENCE WITH ALREADY ESTABLISHED
     RIGHTS MOVEMENTS

The development of non-binary rights is adjacent, if not connected, to multiple other
rights movements, particularly women’s rights, sexual orientation minorities, inter*
persons rights as well as the (binary) trans* movement itself. However, it is necessary to
expose the divergences between those movements and the non-binary claims to define
the need for specific legal protection for non-binary individuals.
           First, as mentioned previously, the feminist movement clearly intersects with
the interests of the non-binary community through its fight to deconstruct gender
norms. However, this is also to be considered a divergence. In many ways, women’s
rights advocates work to rip apart the socially established gender roles that are
attributed to men and women but in doing so, they do not necessarily question the
gender binary itself.36 In other ways, many may feel that the expansion of gender
beyond the binary might be detrimental to the fight for women’s rights in itself
countering the efforts made to provide for a clear and strict definition of what a woman
is.37 However, another relevant development in the field of women’s rights is Article 5 of
the C.E.D.A.W. which tackles directly the need for states to “modify the social and
cultural patterns of conduct of men and women” and harmful gender stereotypes.38 This
provision is interesting in the sense that it shows a questioning of the harm caused by
socially entrusted social norms regarding gender. However, it remains fundamentally
binary.
           Second, the intersection with the fight for sexual minorities is similarly
double-folded. First of all, it is necessary to recall that gender identity and sexual
orientation are different concepts which are not co-dependent. Thus, persons who
identify as non-binary gender-wise may have a variety of different sexual orientations.39
However, there is a really interesting connection to be made between the non-binary

36
   See Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. REV. 83,
   120 (2010).
37
   See Hadley Freeman, Transparent’s Jill Soloway: ‘The Words Male and Female Describe Who We Used to Be’,
   The Guardian (May 21, 2017), https://www.theguardian.com/tv-and-radio/2017/may/21/transparents-jill-
   soloway-the-words-male-and-female-describe-who-we-used-to-be.
38
   UN      Convention       on    the     Eradication     of     all     forms     of    Discrimination      Against
   Women,        Dec.            18,     1979,     art.           5,      https://www.ohchr.org/en/instruments-
   mechanisms/instruments/convention-elimination-all-forms-discrimination-against-
   women#: :text=States%20parties%20are%20therefore%20obliged,stereotyped%20roles%20for%20men%20and.
39
   Additionally, it is necessary to consider that sexual orientation as a large concept is inherently binary. The
   definition of different identities, homosexual, lesbian or even bisexual, implicitly relies on the existence of
   two binary genders. In this sense, someone will identify as homosexual not only because they are attracted
   to the same gender but also because they identify as said gender as well. Hence, what do we do about non-
   binary persons in terms of linguistics.


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rights movement and the fight for recognition of bisexuality. Where non-binary gender
identities come to disrupt the gender binary, bisexuality can be seen as a similar
disruption of the binary established between heterosexual and homosexual. In this
sense, both threaten the establishment of sex as a “primary category of social
organisation”.40
           Third, it is more complex to establish the relationship between the trans*
communities and specifically non-binary individuals and the inter* rights movement. All
indeed relate to gender identity and all relate to the disruption of the gender binary and
its biological origin. It is equally true that a number of inter* persons actually identify as
non-binary – but not all.41 In a way, the new visibility given to non-binary identities may
benefit the fight for inter* rights, especially in helping normalise the existence of bodies
outside of the gender and sex binaries which in itself would be beneficial in the fight
against inter* genital mutilations.42 Nevertheless, the connection of those two different
rights movements might be detrimental to the non-binary movement. As highlighted by
Peter Dunne, it might be attractive for trans* and non-binary advocates to use the inter*
example as an argument against the existence of a strict gender binary and as supporting
the need for the multiplication of gender categories past male and female.43 But, tying
the legal recognition of non-binary individuals to the mere existence of inter* persons
implies the determination of gender by sex characteristics. In other words, if inter*
persons are given the possibility to be registered as neither male nor female because of
their sex characteristics, then what is made of non-binary persons who do not present
inter* variations?44
           Finally, there might even be divergences in the interest of trans* persons as well.
This is true when looking at binary trans* persons separately from non-binary individuals.
For instance, a number of trans*, and inter*, persons, while disrupting the gender norms
by transitioning, still identify as male or female. In this sense, the recognition of non-
binary gender identities must ensure that binary trans* and inter* individuals still have
access to proper protection of their preferred binary gender.45
           Altogether, the non-binary rights movement takes and learns from all pre-existing
movements. But it is necessary to frame it as a specific and independent claim in order

40
   Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, 52 STAN. L. REV. 353 (2000).
41
   See SHARON E. PREVES, INTERSEX AND IDENTITY: THE CONTESTED SELF 60-85 (2003).
42
   Clarke, supra note 16, at 929.
43
   Peter Dunne, Towards Trans and Intersex Equality: Conflict or Complementarity?, in THE LEGAL STATUS OF INTERSEX
   PERSONS 217, 237 (Jens M. Scherpe et al. eds., 2018).
44
   Id.
45
   Sally Hines, What’s the Difference? Bringing Particularity to Queer Studies of Transgender, 15 J. GENDER STUD. 49, 64
   (2006).


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not only to be true to non-binary persons’ real needs but also to avoid limiting the rights
of others.



     1.2.3. SPECIFIC HARM SUFFERED

When it comes to documenting the specific harm suffered by non-binary persons for the
reason of their gender identity, there are two paths to be examined: the social
acceptance of non-binary identities, and the physical and mental harm suffered in
practice by individuals regardless of this social environment.
         A lot of information can be obtained by analogy through studies of the situation
of binary trans* persons as they interconnect with non-binary issues in the way that
they both question the socially established gender binary between male and female.
However, non-binary identities are seen in a different light due to the fact that, unlike
binary identities, they do not comply with the binary and are often perceived as an
attempt to create a “new” gender category. Because of this, non-binary identities are
very often considered less threatening to the established social order as they are seen as
less legitimate. In this sense, non-binary persons are likely to be more accepted socially
when their identity is not linked to any “political claim” regarding their identity.46 This
has been theorized by Burke in a study regarding the social perceptions of bisexual and
biracial persons. Similarly, as non-binary persons, they can be qualified as “social group
intermediaries”.47 The study shows that, overall, all intermediary groups are “perceived
as less socially real than other groups”,48 putting forward the idea that those groups are
both less relevant and less threatening to society as an immovable system.
         However, this invisibilisation in society does not imply that non-binary persons
are exempted from discrimination and violence. Establishing a global picture, the Office
of the High Commissioner for Human Rights [hereinafter O.H.C.H.R] defines the harm
suffered by the lesbian, gay, bisexual, transgender, queer, intersex, asexual (and more)
[hereinafter L.G.B.T.Q.I.A.+] communities in terms of “multiple and intersecting forms of
discrimination (including based on age, gender, ethnicity, disability and social status)” as
well as “lack of access to their economic, social, and cultural rights”.49              Forms of
46
   Armitage, supra note 18, at 24.
47
   Sarah Emily Burke, The Excluded Middle:           Attitudes and Beliefs about Bisexual People,
   Biracial People, and Novel Intermediate Social Groups 1 (Dec., 2016) (Ph.D. dissertation, Yale
   University) (ProQuest)„ https://www.proquest.com/openview/626696401d172b2d628c3ef4fdfc603c/1?pq-
   origsite=gscholar&cbl=18750.
48
   Id. at 3.
49
   Office of the High Commissioner for Human Rights, Statement by Human Rights Experts
   on the International Day against Homophobia, Transphobia and Biphobia, (May 17, 2018)
   https://www.ohchr.org/en/statements/2018/05/leave-no-lgbt-person-behind?LangID=E&NewsID=23092.


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exclusion and discrimination against L.G.B.T.Q.I.A.+ individuals also include poor access
to education as well as increased risk of homelessness and more.50 More specifically,
non-binary persons, as part of the broader trans* community are exposed to
significantly higher rates of discrimination in multiple aspects. Studies show that nearly
half of trans* and non-binary persons report having been verbally harassed for their
gender expression51 in public spaces. Additionally, about one in ten report having been
physically assaulted on the basis of their gender expression. 52 This is particularly strong
in the case of non-binary persons who often present in androgynous ways– although it is
not the case for all non-binary persons – and thus, visibly disrupt the gender binary.
Furthermore, they are exposed to a higher risk of suicide and suicide attempts, and
associated mental health conditions, especially at young ages – ranging from forty per
cent to fifty per cent of trans* and non-binary teenagers having attempted suicide at
least once.53 Similarly, trans* and gender-diverse persons report significantly higher
rates of sexual violence.54         Because of the priorly established social exclusion of
non-binary persons, there is evidence that non-binary-identifying individuals are
subjected     to   increased      discrimination      compared      to   their    binary-identifying
counterparts.55     In this sense, non-binary persons are erased from society, but, when
they are visible, especially through their gender expression, they are immediately at
higher risk of discrimination and violence.




      2. THE INCLUSION OF NON‐BINARY CLAIMS TO RECOGNITION AND
      PROTECTION UNDER THE COUNCIL OF EUROPE FRAMEWORK

In this Chapter, I will explore the existing framework for the expansion of non-binary
legal recognition and, more importantly, protection under the Council of Europe. In
other words: in what aspects are the non-binary identities protected under the Council

50
   Id.
51
   Human Rights Campaign defines “gender expression” as the “[e]xternal appearance of one’s gender
   identity, usually expressed through behavior, clothing, haircut or voice, and which may or may
   not conform to socially defined behaviors and characteristics typically associated with being either
   masculine or feminine”.See Sexual Orientation and Gender Identity definitions, HUMAN RIGHTS CAMPAIGN,
   https://www.hrc.org/resources/sexual-orientation-and-gender-identity-terminology-and-definitions
   (last visited Nov. 19, 2023).
52
   SANDY E. JAMES ET AL., THE REPORT OF THE 2015 U.S. TRANSGENDER SURVEY (2016).
53
   See Russell B. Toomey et al., Transgender Adolescent Suicide Behavior, in Pedriatics Vol. 142 Issue
   4 (2018), https://publications.aap.org/pediatrics/article-abstract/142/4/e20174218/76767/Transgender-
   Adolescent-Suicide-Behavior?redirectedFrom=PDF.
54
   See supra note 45.
55
   Armitage, supra note 18, at 25.


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of Europe framework, and specifically the E.C.H.R., and in what ways are their identities
an obstacle to reaching equal treatment and the effective realization of their human
rights?      And following this, what are potential avenues in creating a protective
framework for non-binary persons under this framework? In order to answer those
questions, I will first explore the idea of a right to non-binary legal recognition under the
existing Council of Europe framework before looking into potential avenues for further
developments that have not yet been acknowledged by the Court itself but have been
rising in other jurisdictions.



     2.1. A RIGHT TO NON‐BINARY LEGAL RECOGNITION?

     2.1.1. ESTABLISHED FRAMEWORK AND LEGAL SOURCES OF RIGHTS AND
     PROTECTION

Defining a right to legal recognition for non-binary gender identities is not as obvious as
it could appear. To this day, the Council of Europe framework does not provide for any
binding instrument or case law creating an obligation for states to consider non-binary
legal recognition. Additionally, a word search for “non-binary” on the European Court of
Human Rights case-law database came back empty meaning that no decision or document
of the Court ever mentioned the term, let alone address it directly. However, this is not to
say that there are no relevant developments on the matter through alternative avenues.
          A starting point to tackle legal gender recognition [hereinafter L.G.R.] under
human rights law is the Yogyakarta Principles.56 While it is not directly a Council of
Europe instrument, it is the most influential international law document57 when it
comes to the rights of L.G.B.T.Q.I.A.+ persons. In this sense, the Principles constitute a
comprehensive compilation of the principles followed by international and European
law on matters of gender identity, sexual orientation and sex characteristics.                            The
principles deliberately use gender-neutral language in order to highlight the principle of
universality of human rights – although not textually mentioning “non-binary”.58 In this
sense, the rights and principles expressed are to be applied to all persons without
distinctions and do not provide specific guidelines on the protection and rights of
particular groups.59         This is particularly interesting when looking at the rights of
56
   Yogyakarta Principles, supra note 9; Yogyakarta Principles Plus 10, Nov. 10, 2017.
57
   See Paula L. Ettelbrick & Alia Trabucco Zerán, The Impact of the Yogyakarta Principles on International Human
   Rights Law Development A Study of November 2007 – June 2010: Final Report 52-55 (Sept. 10, 2010) (unpublished
   manuscript) (on file with author).
58
   Yogyakarta Principles, supra note 9, at Principle 1 – The Right to the Universal Enjoyment of Human Rights.
59
   See Sheila Quinn & International Commission of Jurists, An Activist’s Guide to The Yogyakarta Principles
   23 (2010), https://yogyakartaprinciples.org/wp-content/uploads/2016/10/Activists_Guide_English_nov_1
   4_2010.pdf.
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non-binary persons. Because of the neutral language, they can be included fully under
the ambit of the principles. Moreover, the principles introduce the necessity to avoid
requiring individuals to have to categorize themselves into specific identity boxes that
might not represent their identity accurately. To this end, the Yogyakarta Principles
approach sexual orientation and gender identity as fluid and thus consider that forcing
an individual to exist within limited and unrepresentative legal categories consists in the
perpetuation of an oppressive system.60 Those principles are relevant so far as they have
been accepted and recognised by the Council of Europe.61 ; A.P., Garçon and Nicot v.
France, App.           No.      79885/12, 52471/13 and 52596/13, ¶ 111 (Apr.                             6, 2017),
https://hudoc.echr.coe.int/spa#%22itemid%22:[%22001-172913%22.                                  Note that the
Yogyakarta Principles and their updated version do not have a binding effect but can be
considered to have strong authoritative value in the field of sexual orientation and
gender identity and human rights.                 In this context, the Committee of Ministers of the
Council of Europe put forward a Recommendation on “measures to combat
discrimination on grounds of sexual orientation and gender identity” in 2010 which
included principles derived from the Yogyakarta Principles, particularly the universality
of human rights. Moreover, it highlighted the idea that “neither cultural, traditional or
religious values, nor the rule of the dominant culture, can be invoked to justify
discrimination on grounds of sexual orientation and gender identity”.62                                  Although
contained in a non-binding document, this could be a good stepping stone in creating a
framework for the recognition and protection of non-binary persons.
           The Council of Europe framework extended further on the issues in the decade
following this first Recommendation. Three documents need to be mentioned: the 2015
Resolution on “Discrimination against transgender people in Europe”,63 the 2017
Resolution on “Promoting the human rights of and eliminating discrimination against
intersex people”64 and the 2022 Resolution on “Combating rising hate against [lesbian,
gay, bisexual, transgender, and intersex] [hereinafter L.G.B.T.I.] people in Europe”.65

60
   Id.
61
   See Ettelbrick & Trabucco Zerá, supra note 57, at 52-55; Silvan Agius et al., Human Rights and Gender Identity Best
   Practices Catalogue, ILGA Europe 8-10 (2011), https://www.ilga-europe.org/files/uploads/2022/04/Human-
   Rights-Gender-Identity-Best-Practice-Catalogue.pdf. See also references made to the Principles by the
   E.Ct.H.R. in cases such as Hämäläinen v. Finland, App. No. 37359/09, ¶ 16 (July 16, 2014),
   https://hudoc.echr.coe.int/fre#%22itemid%22:%22001-145768%22
62
   Council of Europe Committee of Ministers, Recommendation CM/Rec(2010)5 of the Committee of Ministers to
   Member States on Measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity, (2010),
   https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805cf40a.
63
   Eur. Parl. Ass., Discrimination against Transgender People in Europe, 15th Sess., Doc. No. 13742 (2015),
   https://assembly.coe.int/nw/xml/Xref/Xref-XML2HTML-en.asp?fileid=21630&lang=en.
64
   Eur. Parl. Ass., Promoting the Human Rights of and Eliminating Discrimination against Intersex People, 35th Sess.,
   Doc. No. 14404 (2017), https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=24232&.
65
   Eur. Parl. Ass., Combating Rising Hate against LGBTI People in Europe, 3rd Sess., Doc. No. 15425 (2022),
   https://pace.coe.int/en/files/29712/html.

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The first one, while largely focused on trans* rights within the gender binary, puts the
focus on the importance of self-determination as a guiding principle in L.G.R.
procedures.66 Even more striking, the resolution calls for states to “consider including a
third gender option in identity documents for those who seek it”.67 This paired with the
call for the amendment of all medical requirements in L.G.R. procedures68 points to the
potential opening of non-binary legal gender recognition for all. Furthermore, the
Resolution supports the development of a right to gender identity in High Contracting
Parties from which should flow a right to legal gender recognition for all, in line with the
universality principle: “The Assembly welcomes, in this context, the emergence of a right to
gender identity, first enshrined in the legislation of Malta, which gives every individual the right to
recognition of their gender identity and the right to be treated and identified according to this
identity”. 69
           The second Resolution focuses explicitly on the rights of inter* persons. As
defined previously, the inter* rights and the non-binary rights movements are separate
and should be treated as such.70                  However, in the absence of direct reference to
non-binary gender identities in the Council of Europe framework, it is relevant to look at
the principles it upholds for adjacent issues. To this end, the Resolution tackles issues of
L.G.R. for inter* persons falling outside of the gender binary in the following terms:
“Ensure, wherever gender classifications are in use by public authorities, that a range of options
are available for all people, including for those [inter*] persons who do not identify as either male
or female”.71 Because it equally underlines the importance of self-determination as a
guiding principle in such procedures, this mention of non-binary legal categories for
gender becomes relevant for all persons. It can be argued that non-binary persons are
not directly mentioned in those documents because of a lack of social visibility as a
group rather than because of a voluntary exclusion on behalf of the authorities. In this
sense, the document remains useful in defining a legal approach to the legal recognition
and protection of non-binary persons who are not inter*.
           The latter is interesting because of how recent it is. While not containing
particular mentions of LGR or non-binary gender identities, it urges states to “prevent
further backsliding, and to work actively to promote full respect for the rights of
[L.G.B.T.I.] people”.72 This recent re-commitment to the development of recognition and

66
   Eur. Parl. Ass., supra note 63, ¶ 6.2.1.
67
   Id. ¶ 6.2.4.
68
   Id. ¶ 6.2.1.
69
   Id. ¶ 5.
70
   See supra Section 1.2.2.
71
   Eur. Parl. Ass., supra note 64, ¶ 7.3.3 (emphasis added).
72
   Eur. Parl. Ass., supra note 65, ¶ 7.


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protection for L.G.B.T.I. persons is fundamental in defining the direction in which the
Council of Europe and its Court are going. In other words, this showed a seemingly deep
commitment to the protection of all individuals regardless of their sexual orientation
and gender identity that would be contradicted by a refusal to provide effective
recognition and protection to non-binary persons.
This was recently turned over by the decision of the E.Ct.H.R.in the case of Y v. France.73
The case related to the refusal of French authorities to grant an intersex applicant the
change to a neutral gender registration on their birth certificate as well as a neutral gender
marker in the form of an ‘X’ on their identity documents. In its decision, the E.Ct.H.R.
found no violation of Article 8 E.C.H.R. and thus sided with the French Government in
saying that it did not come within the State’s obligation under the E.C.H.R. to organize
the registration of gender outside of the binary. The judgement based itself largely on the
idea that such a matter was highly controversial in European states and thus it did not fall
under the scope of the Court’s ability to impose such major social changes in the absence
of a “European consensus”. In doing so, the Court decided that the interest of the state in
preserving its binary system of registration outweighed the interests of the individual to
see their identity properly registered. This is a regrettable take of the Court following a
promising development towards inclusive and protective understandings of human rights
for intersex and non-binary individuals. Moreover, it is largely reflected in the form of the
hypocrisy of the state in maintaining an unrealistic binary division of gender as pointed
out by Judge Šimáčková in her dissenting opinion:

               And what are the State’s arguments? You were not born male or
               female, but the law does not allow it. Therefore you must adapt your
               body (even if you will suffer) and your soul (even if you will feel
               humiliated) to correspond to the laws adopted by the State. I find this
               interference so serious that I believe it violates the applicant’s right
               to respect for private life.74

Interestingly enough, the Court does make some remarks that are not so negative.
Particularly, it rejected the argument of the French Cour de Cassation [Court of Cassation]
in saying that the fact that the Applicant could be perceived as male by an outside
observer, which matched the “male” registration of his gender, indicated that there was
a balance of interest. The E.Ct.H.R. further underlined that the appearance of the
Applicant could not be used to deduce their felt gender identity and reiterated that
gender is an essential aspect of an individual’s intimate identity and recognised the
73
     Y v. France, App. No. 76888/17 (Jan. 31, 2023), https://hudoc.echr.coe.int/eng?i=001-222780.
74
     Id. ¶ 1 (Judge Šimáčková, dissenting).


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harm that may be suffered by individuals whose identity is erased by their national
administration.75
          This decision remains a significant backlash on the development of protection
for non-binary gender identities. This is particularly due to the fact that the case of Y v.
France concerned an inter* person whose body had been proven to not conform to the
expected criteria of male and female anatomy. Thus, it further closes the door for
non-binary persons who do not have such “biologically receivable proof ”. In a sense,
inter* persons can be seen as the “perfect subject” for states to understand the need to
expand their understanding of gender as they are, starting at birth, not fitting the
categories that the states persist on maintaining. However, the states, with the support
of the Court stand now in a position to refuse the recognition of gender outside of the
binary in civil registries and identification documents while still recognizing that such a
refusal may create serious harm to the concerned individuals, and goes as far as
supporting and advocating for the “normalization” of inter* persons in order to make
their natural bodies fit unnatural and socially constructed categories of gender.76



     2.1.2. THE CHRISTINE GOODWIN V. THE UNITED KINGDOM CASE AND
     SUBSEQUENT           CASE‐LAW:         IMPLICATIONS           FOR      NON‐BINARY           LEGAL
     RECOGNITION

When it comes to the right to L.G.R. in the Council of Europe framework, the most
relevant document is the decision of the Grand Chamber of the E.Ct.H.R. in the Christine
Goodwin v. the United Kingdom case in 2002. In this decision, the Court upheld the
existence of a right for a trans* person (in this case a trans* woman) to see their gender
marker legally changed to match their internally felt gender identity. In doing so, the
Court reiterated that gender identity constituted an “important aspect of personal
identity”.77 In this sense, it considered that the absence of legal gender recognition
procedures constituted a “serious interference with the private life” under Article 8 of
the Convention and could not be considered a “minor inconvenience arising from a
formality” as argued by the British Government.78 Moreover, the Court went as far as
stating that requiring a person to exist within a gender category that does not match

75
   Id. ¶ 83 (majority opinion).
76
   Organisation Intersex International Europe [OII], Comment on Y v. France ECHR decision (Feb. 22, 2023),
   https://www.oiieurope.org/comment-on-y-v-france-echr-decision/.
77
   See, Dudgeon v. the United Kingdom, App. No. 7525/76, ¶ 41 (Oct. 22, 1981), https://hudoc.echr.coe.
   int/?i=001-57473, in Christine Goodwin v. the United Kingdom, App. No. 28957/95, ¶ 71 (July 11, 2002),
   https://hudoc.echr.coe.int/fre?i=001-60596.
78
   Christine Goodwin v. the United Kingdom, ¶ 71.


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their lived experience of gender creates a position of “vulnerability, humiliation and
anxiety” deriving from the “conflict between social reality and law” they are
experiencing.79
          This case aimed at redressing harm suffered by binary trans* persons and
created a positive obligation for states to create effective procedures of L.G.R. Thus, it
does not mention non-binary identities nor does it touch upon the possibility of opening
gender registration to more categories than the established binary “male” and “female”
categories. However, one could argue that the underlying principles the Court applied in
this case, in line with those contained in the aforementioned Yogyakarta Principles and
Council of Europe Resolutions, could and should be applied similarly to the case of
non-binary persons. It has been shown by the Court’s decision in Y v. France that the
moment has not yet come to see this implemented. The argument does not lose in value
but it is necessary to take a step back in view of the current jurisprudence of the Court
which seems to directly contradict its previous approaches and the potential implication
they could have had, and still may have in the future. The Court recognises the harm
caused by the inability to see one’s gender identity accurately recognised and
represented by the law and on their identity documents as a serious breach of the right
to private life under Article 8 of the Convention.                   Furthermore, it recognises the
importance of self-determination in the determination of one’s legal gender. Hence, if
applied to a non-binary person, it would be the logical conclusion to extend the
reasoning of the Court in the Christine Goodwin case in order to include gender identity
outside the binary as well.80 The Court has extended its stance on gender identity as a
ground for discrimination in another few cases and through slightly different avenues:
creating an enhanced duty to protect under Article 3 in conjunction with Article 1481 and
establishing a higher threshold of “particularly serious reasons” to justify interferences
with the “right to gender identity”.82
However, national developments in the United Kingdom following the Christine Goodwin
case seem to have been substantiated the opposite way. In the case of Elan-Cane83 decided
by the British Supreme Court in 2021, the following question was asked to the Court:

79
   Id.
80
   See Neela Goshal, Transgender, Third Gender, No Gender: Rights Perspectives on Laws Assigning Gender, Part
   II, OPINIO JURIS, (Sep. 4, 2020), https://opiniojuris.org/2020/09/04/transgender-third-gender-no-gender-
   rights-perspectives-on-laws-assigning-gender-part-ii/.
81
   Identoba and Others v. Georgia, App. No. 73235/12, ¶¶ 63-64 (May 12, 2005), https://hudoc.echr.coe.
   int/fre?i=001-154400.
82
   P.V. v Spain, App. No. 35159/09, ¶¶ 63-64 (Nov. 30, 2010),https://hudoc.echr.coe.int/tkp197/view.asp?i=002-
   736.
83
   R (on the application of Elan-Cane) (Appellant) v Secretary of State for the Home Department (Respondent)
   [2021] UKSC 56 On appeal from: [2020] EWCA Civ 363 (Eng.).


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            Does [A]rticle 8 of the European Convention on Human Rights . . .
            either taken in isolation or read together with [A]rticle 14, impose an
            obligation on a contracting state, when it issues passports, to respect
            the private lives of individuals who identify as non-gendered, by
            including a nongendered (“X”) marker for the passport-holders
            gender, as an alternative to the markers for male and female?84

The Court decided in the negative, defining that the case law of the E.Ct.H.R., and
specifically the case of Christine Goodwin, did not imply an obligation for the state to open
L.G.R. to non-binary categories. It clearly states that “there is no judgment of the
European Court of Human Rights which establishes a positive obligation to recognise a
gender category other than male or female, and none which would require the Secretary
of State to issue passports without any indication of gender”.85 Interestingly enough, the
Court recognises that the identity of the individual as non-binary (“non-gendered”) falls
under the ambit of their private life and is protected by the Convention.86 However, it
does not deduce from it a right to protection of said identity. What becomes particularly
important in this decision is the margin of appreciation left by the E.Ct.H.R.to the states
on the application of certain of their obligations under the Convention. The British
Court mentions the decision of the E.Ct.H.R.in the Hämäläinen case in which it defined
the factors to be taken into account when defining the extent of the state’s margin of
appreciation: the existence of a consensus among High Contracting Parties to the
Convention, the relative importance of the interests at stake, and the existence of moral
or ethical issues linked to the case.87 Because of the absence of a European consensus
regarding non-binary legal gender recognition, the British Court deduced a large margin
of appreciation. Since this judgment, the E.Ct.H.R.has notably recognised the right for
one to define their gender identity which would likely have influenced the obligations of
the United Kingdom in a case like Elan-Cane.88 Furthermore, developments in other
Member States regarding the creation of a “third” or “X” gender marker and thus a
non-binary form of L.G.R. could have been used for the opposite arguments in
substantiating an emerging European trend.89 In the eyes of the E.Ct.H.R., the threshold
in defining such a European trend has not yet been reached as was illustrated by its
decision in the case of Y v. France. However, the further development of such frameworks
84
   Id. at 1, “questions raised by the appeal”.
85
   Id. § 30.
86
   Id.
87
   Hämäläinen v. Finland, App. No. 37359/09, ¶ 67 (July 16, 2014), https://hudoc.echr.coe.int/fre#%22ite
   mid%22:[%22001-145768%22].
88
   L. v Lithuania, App. No. 27527/03 (Sept. 11, 2017), https://hudoc.echr.coe.int/?i=001-82243.
89
   See infra Chapter 3 for the analysis of the national frameworks having recognised a form of non-binary L.G.R.



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                             COUNCIL OF EUROPE FRAMEWORK


in High Contracting Parties may eventually, and hopefully, lead to a shift in the Court’s
position.
            This opens a debate about the interpretation of the E.Ct.H.R.’s case law on
matters of gender identity and specifically of the implications of the Christine Goodwin
decision. Indeed, the discussion lies on whether deducing protection for non-binary
persons under the Christine Goodwin decision would be going “beyond” the state’s
obligation under the Convention and therefore within the discretion of the state or if, on
the contrary, refusing recognition of non-binary persons in light of the existence of this
judgment would be “against” the state’s obligations. It is clear in the E.Ct.H.R.’s case law
that states are given the opportunity – and not the obligation – to provide a higher
standard of protection on the national level than provided by the Convention
framework.90 In this sense, the British Court argued in the Elan-Cane case that it did not
go “against” its obligations by deciding the case in the negative but that it merely
refused to go “beyond” its obligations by expanding the Christine Goodwin
jurisprudence.91          This could easily be argued the opposite way as recognition of
non-binary gender identities would be in line with the Convention’s aim and purpose.
However, in the absence of clear decisions of the E.Ct.H.R. targeting directly the issue of
non-binary gender registration, it will be tedious to build a case that would not be struck
down because of the margin of appreciation argument. However, the emerging trend on
the national level of opening a third legal gender category in the form of an “X” could
soon prove to be influential on the stance of the Court.



       2.2. OTHER POTENTIAL AVENUES: ARTICLES 3 AND 10 OF THE EUROPEAN
       CONVENTION ON HUMAN RIGHTS

While we wait for the E.Ct.H.R. to take on a case on whether non-binary persons should
be included under the reading of the Christine Goodwin judgment, and therefore under the
ambit of Article 8 of the Convention, it is possible to consider other avenues and rights
that could be used in the fight for non-binary recognition and protection. Expanding on
this, it is necessary to reflect on the very adequacy of Article 8 to deal with this issue.
The case of Christine Goodwin discussed priorly is the first case the Court decided positively
on this matter and its decision under Article 8 has been highly influential in defining the
legal avenue for the defence of gender identity-related rights. This legal basis is as weak
as the rights under Article 8 are qualified and not absolute. Thus, the state can argue for
90
     European Convention of Human Rights art. 53, Nov. 4, 1950.
91
     Lewis Graham, Going beyond, and Going against, the Strasbourg Court, UK CONSTITUTIONAL LAW ASSOCIATION
     (Jan.   11, 2022), https://ukconstitutionallaw.org/2022/01/11/lewis-graham-going-beyond-and-going-
     against-the-strasbourg-court/.
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the refusal of legal gender recognition when “proportional” to the public interest. In this
context, it is interesting to argue that the denial of L.G.R. could be argued as a violation of
the individual’s rights on different bases, either as an (almost) absolute right92 under the
prohibition of cruel, inhuman, and degrading treatment (Article 3 E.C.H.R.) or through
another, more respectful avenue, namely the right to freedom of expression (Article 10
E.C.H.R.). However, to replace those arguments in the current context, this Subchapter
will also reflect on the meaning of the Court’s decision in the cases of Y v. France and A.H.
and others v. Germany for the future of the protection of trans*, non-binary and inter* rights
by the E.Ct.H.R.



     2.2.1. QUALIFYING LACK OF LEGAL GENDER RECOGNITION PROCEDURES
     AS CRUEL, INHUMAN AND DEGRADING TREATMENT

The approach suggested by Bassetti brings clear relevance to the qualification of denial
of legal gender recognition as a violation of the prohibition of torture, cruel inhuman
and degrading treatment under international human rights law and more specifically
under Article 3 of the European Convention on Human Rights.93 He puts forward two
main issues at play when one is denied recognition of their gender identity by the state:
1) further exposition to human rights violations due to the incongruence of one’s
perceived and lived identity with their legal identity and, 2) subsequent psychological
suffering that may amount to degrading or inhuman treatment.94
When it comes to inhuman or degrading treatment, the case law of the E.Ct.H.R. is
fruitful. However, applying this case law to the lack of L.G.R. procedures has yet to be
done in court proceedings. Nevertheless, the link was made by the Inter-American Court
of Human Rights in its Advisory Opinion on “Gender Identity, and Non-Discrimination of
Same-Sex Couples”.95 It puts forward the idea that the refusal to recognise one’s gender
through adequate L.G.R. procedures creates a lack of juridical personality which in terms
“harms human dignity because it is an absolute denial of a person’s condition as a
subject of rights”.96 This can be translated into the language of the E.Ct.H.R. fairly
logically through the definition of inhuman and degrading punishment in its case law in

92
   The prohibition of torture under Article 3 has emphatically been defined as an absolute right, however, the
   prohibition of inhuman and degrading treatment of punishment is less extensive.
93
   Matteo E. Bassetti, Human Rights Bodies’ Adjudication of Trans People’s Rights: Shifting the Narrative from the Right
   to Private Life to Cruel and Inhuman or Degrading Treatment, EUR. J. LEGAL STUD. 291 (2020).
94
   Id. at 306.
95
   Gender identity, and equality and non-discrimination of same-sex couples, Advisory Opinion OC-24/17,
   Inter-Am. Ct. H.R. (Nov. 24, 2017).
96
   Id. ¶ 102.


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 which the Court finds violations of Article 3 when acts or policies humiliate or debase the
 individual, “in their own eyes or in the eyes of others”.97 Moreover, the Court has
 recognised the harm created by the lack of availability of L.G.R. in the L v. Lithuania case
 in which it stated that this impossibility “left the applicant in a situation of distressing
 uncertainty vis-à-vis his private life”.98 In this sense, the Court recognises the harm that
 arises when trans* persons are denied L.G.R. in forcing them to publicly disclose intimate
 aspects of their private lives as well as the incongruence of their legal status.99 Where
 the Court’s assessment falls short is that it has not, to this day, recognised this harm to
 be severe enough to reach the threshold it has established for inhuman and degrading
 treatment. This has been attributed by the Fundamental Rights Agency to general
 transphobia as well as a lack of awareness regarding the lived experiences of trans*
 persons in Europe.100 Indeed, there is no clear legal reason as to why the Court has been
 underestimating the harm suffered by trans* and non-binary persons under Article 3 of
 the Convention. There is yet to be a successful application in framing the harm suffered
 by non-binary persons facing the absence of adequate legal gender recognition as a
 violation of Article 3 of the Convention. However, the Court has established that the
 threshold under Article 3 may be reached without physical violence. It may be sufficient
 that the victim experiences “psychological suffering” which

            causes in its victim feelings of fear, anguish and inferiority, if it
            humiliates or debases an individual in the victim’s own eyes and/or in
            other people’s eyes, whether or not that was the aim, if it breaks the
            person’s physical or moral resistance or drives him or her to act
            against his or her will or conscience, or if it shows a lack of respect
            for, or diminishes, human dignity.101

 The reference to “human dignity” particularly may be ground to include the suffering
 and distress felt by non-binary persons when faced with the refusal of recognition of
 their identity by the state apparatus. Drawing from this we can refer to Bassetti who
 draws the parallel between the Court’s and other human rights bodies’ case-law on the
 right to not be forced to act against one’s will or religion and the right to protection
97
    Campbell and Cosans v. The United Kingdom, Apps. Nos. 7511/76, 7743/76, ¶ 28 (Feb. 25, 1982),
    https://hudoc.echr.coe.int/fre?i=001-57455; see also Tyrer v. the United Kingdom, App. No. 5856/72, ¶¶
    30-32 (Apr. 25, 1978), https://hudoc.echr.coe.int/fre?i=001-57587.
 98
    L. v. Lithuania, Eur. Ct. H.R. (2008).
 99
    Bassetti, supra note 93, at 307.
100
    European Union Agency for Fundamental Rights, Being Trans in the European Union: Comparative Analysis
    of EU LGBT survey data 78-92 (Jan. 12, 2014), https://fra.europa.eu/sites/default/files/fra-2014-being-
    trans-eu-comparative-0_en.pdf.
101
    M.C. and A.C. v. Romania, App. No. 12060/12, ¶ 106 (July 12, 2016), https://hudoc.echr.coe.int/eng?i=001-
    161982; Aghgomelashvili and Japaridze v. Georgie, App. No. 7224/11, ¶ 42 (Oct. 8, 2020),
    https://hudoc.echr.coe.int/fre?i=001-204815.


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 against cruel, inhuman or degrading treatment. In this sense, when a person is forced to
 conceal their gender identity to avoid violence and discrimination or to disclose personal
 and intimate aspects of their gender history repeatedly because of the absence of L.G.R.
 by the state, it can be argued that they are then forced to act against their will.102 This in
 itself should amount to cruel, inhuman or degrading treatment per se. Moreover, the
 E.Ct.H.R. and other human rights bodies have a consequent body of law and
 jurisprudence on concealment of sexual orientation under Article 3 in cases of asylum
 and non-refoulement. In this sense, it is considered a violation of the prohibition of torture
 or inhuman or degrading treatment or punishment when an individual is sent back to a
 country where they would face ill-treatment if they do not hide their sexual
 orientation.103 When L.G.R. is not available and an individual is forced to present identity
 documents with an inadequate gender marker, they will be forced daily to either conceal
 their lived gender identity when presenting identification or to disclose their trans*
 identity – which are both equally harmful. Following the same logic, it should be deduced
 that forcing an individual to conceal their identity or to be refused the opportunity to
 express their identity through legal means could amount to ill-treatment in similar ways.
           Following this, it is also necessary to underline the other part of this equation:
 non-binary persons are exposed to further risk of violence and ill-treatment when L.G.R.
 is not available. Indeed, as defined priorly, non-binary persons are a vulnerable group in
 society and the absence of appropriate legal gender recognition procedures leads to the
 absence of an effective system of protection under the law.104 In this sense, it can be
 argued that the mention of one’s gender on identity documents and in state registries
 does not simply constitute a person’s legal status but impacts largely their “social
 status”.105 Therefore, as defined by the E.Ct.H.R. in the Christine Goodwin case, L.G.R. is not
 merely an administrative formality but rather is a necessary order to ensure respect and
 dignity for trans* persons, including non-binary persons.106 This is supported by recent
 research projects that have highlighted the negative impact created by incorrect gender
 markers on non-binary persons’ enjoyment of their social life.107 Thus, if it was shown
 before that L.G.R. can lead to legal protection, the opposite is also true as the lack or

102
    Bassetti, supra note 93, at 307.
103
    See e.g., U.N.H.C.R., supra note 6. At the E.Ct.H.R. level see cases like B. and C. v. Switzerland, Apps. Nos.
    889/19, 43987/16 (Feb. 17, 2021), https://hudoc.echr.coe.int/fre?i=001-206153. Under the European law
    framework see the case of Joined cases C-199/12 to C-201/12, X, Y and Z v. Minister voor Immigratie en
    Asiel, ECLI:EU:C:2013:720 (Nov. 7, 2013).
104
    See supra Section 1.2.1.
105
    Lena Holzer, Legal Gender Recognition in Times of Change at the European Court of Human Rights, 23 ERA F. 165
    (2022).
106
    Christine Goodwin v. the United Kingdom, App. No. 28957/95, ¶ 71 (July 11, 2002); see also Legal Gender
    Recognition Archives, TGEU, https://tgeu.org/issues/legal-gender-recognition/ (last visited Nov. 19, 2023).
107
    See e.g., James et al., supra note 52; Holzer, supra note 105, at 3.


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 denial of L.G.R. is cause for attacks on non-binary’s (and trans* persons in general)
 dignity and safety. There are also aggravating factors. Namely, non-binary individuals
 belonging to other socially vulnerable groups are exposed to a higher level of violence.
 For instance, non-binary persons of colour, sex workers, homeless persons, as well as
 persons of (or perceived of) certain religious groups.108 This is especially because they
 are more likely to be subjected to identity checks.            In this context, the COVID-19
 pandemic has further aggravated the vulnerability of those groups by enabling the
 creation of more security and control checks.109 Finally, These circumstances become
 even more oppressive and violence-inducing when the number of laws differentiating
 between (legal) genders is high in the state.110
          Following this, Article 3 and the prohibition of inhuman or degrading treatment
 could be used as an avenue to push non-binary recognition through to the E.Ct.H.R. As
 Article 3 constitutes an almost absolute right, a decision of the Court in that sense would
 have a larger impact on the High Contracting Parties to the Convention and hence in
 creating wider, appropriate and effective recognition and protection for non-binary
 persons in the Council of Europe territories.



      2.2.2. GENDER EXPRESSION AND THE RIGHT TO FREEDOM OF EXPRESSION

 Including the right to legal gender recognition under the right to freedom of expression
 has yet to be achieved in the E.Ct.H.R. case law. However, it has increasingly been
 considered under other systems and human rights documents. Most relevantly, the
 Yogyakarta Principles, cited before, which establish international standards regarding
 the rights and freedoms of L.G.B.T.Q.I.+ persons, define a right to freedom of opinion and
 expression in Principle 19:        “Everyone has the right to freedom of opinion and
 expression, regardless of sexual orientation or gender identity.              This includes the
 expression of identity or personhood through speech, deportment, dress, bodily
 characteristics, choice of name, or any other means”.111
          Pursuing this Principle, states are called to take “all necessary legislative,
 administrative and other measures to ensure the full enjoyment of the right to express
 identity or personhood”.112 This Principle interprets the right to freedom of expression
 as including the right for all persons, and in our case study of non-binary persons, not
108
    See I Just Try to Make It Home Safe, HUMAN RIGHTS WATCH (Nov. 18, 2021), https://www.hrw.org/rep
    ort/2021/11/18/i-just-try-make-it-home-safe/violence-and-human-rights-transgender-people-united.
109
    Holzer, supra note 105, at 5.
110
    Id. at 3.
111
    Yogyakarta Principles, supra note 9, at Principle 19 (emphasis added).
112
    Id. at Principle 19-C.


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 only to express their identity but to see it recognised by the state through adequate
 procedures. By analogy, we can interpret the open character of the list in the words of
 “any other means”, as well as the mention of the “choice of name”, to include L.G.R. and
 choice of legal gender marker. Thus, Principle 19 of the Yogyakarta Principles can serve
 as a legal basis for a form of state responsibility in providing effective and adequate legal
 gender recognition and registration procedures for all genders, including those outside
 of the binary.
 The Inter-American Court of Human Rights takes a similar approach in its 2017 Advisory
 Opinion.113 In this non-binding document, the Court states that it “considers that the right
 to identity and, in particular, the manifestation of identity, is also protected by Article 13,
 which recognises the right to freedom of expression”.114 It goes on by including gender
 expression within the scope of this Article:

             [A] lack of recognition of gender or sexual identity could result in
             indirect censure of gender expressions that diverge from
             cisnormative or heteronormative standards, which would send a
             general message that those persons who diverge from these
             “traditional” standards would not have the legal protection and
             recognition of their rights in equal conditions to persons who do not
             diverge from such standards.115

 Even more specifically than the Yogyakarta Principles, the Inter-American Court points
 directly at L.G.R. as a right under the right to freedom of expression in conjunction with
 the right to be free from discrimination on grounds of gender identity. In doing so, the
 Court emphasizes that gender identity is not merely a private matter but the right to see it
 respected and recognised extends into the public space.116 This view is equally supported
 by the U.N. Committee on the Rights of the Child117 and the U.N. High Commissioner for
 Human Rights.118
            The Indian Supreme Court rendered a judgment in the National Legal Services
 Authority (NALSA) v. Union of India case based on the same legal basis.119 It defined the
113
    Gender identity, and equality and non-discrimination of same-sex couples, Advisory Opinion OC-24/17,
    Inter-Am. Ct. H.R. (Nov. 24, 2017).
114
    Id. ¶ 96.
115
    Id. ¶ 97; see also Inter-Am. Comm’n H.R., Observation presented by the Commission on February 14, 2007, ¶
    49.
116
    See Eduardo J. Arrubia, The Human Right to Gender Identity: From the International Human Rights Scenario to Latin
    American Domestic Legislation, 33 INT’L J. L. POL’Y & FAM. 360 (2019).
117
    U.N. Commitee on the Rights of the child (CRC), General comment No. 20 (2016) on the implementation of
    the rights of the child during adolescence, CRC/C/GC/20, ¶ 34 (Dec. 6, 2016).
118
    U.N. Office of the United Nations High Commissioner for Human Rights (O.H.C.H.R.), Living Free & Equal:
    What States are doing to tackle violence and discrimination against lesbian, gay, bisexual, transgender and
    intersex people, ¶¶ 86-87, HR/PUB/16/3 (2016).
119
    National Legal Services Authority (NALSA) v. Union of India & Ors., 2014 INSC 275 (SC) (Ind.).
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 right to “expression of [one’s] self-identified gender”120 for a non-binary person as a
 fundamental aspects of the right to freedom of expression. Following this, it instructed
 the Government to organize the legal recognition of a third gender for non-binary
 persons.121
           Put together, those legal approaches and case law point to a viable avenue in
 bringing about L.G.R. procedures for non-binary persons under the right to freedom of
 expression. As of today, the E.Ct.H.R. has yet to hear a case on this matter under Article
 10 of the Convention, but would it be faced with it, the existing international
 jurisprudence quoted could facilitate the development of an obligation to recognise and
 protect non-binary identities in High Contracting Parties. More specifically, the Court
 could be expected to expand on its stance on the right to not have to conceal a
 fundamental part of one’s identity.
           The current case law of the E.Ct.H.R. under Article 10 concerning the principle of
 freedom of expression is extensive but does not mention gender expression as a
 protected principle under this article – yet. In light of the developments in other
 jurisdictions exposed priorly, it is interesting to look at the current case law and position
 of the Court in defining violations of freedom of expression to show in which ways
 gender expression could see itself integrated under the principle. For a violation of
 freedom of expression to be justified in the eyes of the Court, it must be proven lawful
 under national law, to have a legitimate aim and to be necessary in a democratic
 society.122
           For the first criterion, one can assess that the refusal to recognise one’s gender
 expression as equally valid to socially accepted gender identities – taking the form of
 traditional masculinity and femininity – amounts to discrimination based on gender
 which is considered unlawful in most states. Thus, in a state where gender-based
 discrimination is unlawful, the justification under Article 10 that the refusal to recognise
 diverse gender expressions could be deemed not receivable. It is harder to argue that
 there would be an obligation for states to recognise diverse gender expression through
 that avenue. But it may be sufficient to prove the negative.
           For the second criterion, the difficulty lies in establishing that the arguments that
 states could, and most likely would raise, are not sufficient or receivable in dismissing
 the right of gender-diverse persons to see their gender expression respected and thus
 officially recognised by the state. In this sense, states would probably use arguments along
120
    Id. § 62.
121
    Id. § 74.
122
    See Eu. Ct. H.R., Guide on Article 10 of the European Convention on Human Rights – Freedom of Expression
    10.


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the lines of the necessity to protect traditional values and establish the gender binary as a
legitimate aim. The case law of the Court on this criteria shows that it tends to overlook it
to the benefit of a strict evaluation of the third criterion. For the purpose of this analysis,
we will then discuss the potential blockages under the third criterion, assuming that the
Court would find them non-receivable, it would likely use the same language in rejecting
the legitimate aim argument.
        The last criterion is the need to prove that the restriction is “necessary in a
democratic society”. To do so, the state must show that there is a “pressing social need”
justifying the restriction. In this sense, the Court evaluates the weight of the interests of
the individual against those of the states. Assuming that the Court would see the harm
caused by the absence of legal gender recognition, it would thus recognise the extent of
the restriction this refusal or absence of recognition represents on non-binary persons’
right to freedom of (gender) expression. It is particularly in defining this overriding
interest that the Court may find useful references in the case law of other jurisdictions
which have paved the way. Thus stating that the interest of the state in preserving a
status quo in the gender binary is not significant enough to justify the violation of
non-binary persons’ fundamental right to see their freedom of (gender) expression
protected and respected.
        However, it is necessary to come back to the recent decision of the Court in the case
of Y v. France in which it decided that the similar balancing act of interests under Article
8 did not play to the advantage of the individual as there was no “European consensus”
concerning the question of non-binary legal gender recognition. In this sense, the Court
decided that the margin of appreciation of the states under Article 9 was broad and allowed
for their refusal to create a third gender marker regardless of the harm suffered by the
individual. In light of this judgement, the Court would likely have a similar stance if asked
to assess this question under Article 10. However, this does not take from the importance
of defending gender expression as part of freedom of expression as the Court’s position
on the matter is nowadays clearly obstructed by the absence of state support for gender
non-conforming persons which says nothing of their true existence and suffering. There
is a long way to pave the way for appropriate and effective human rights protection for all
persons.




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      2.2.3.        CURRENT STANCE OF THE COURT: THE RETURN OF THE
      “EUROPEAN CONSENSUS” ARGUMENT AND THE MOVE AWAY FROM
      EFFECTIVE PROTECTION OF L.G.B.T.Q.I.A.+ RIGHTS

 In the current state of the Court’s case law, it appears that the Court is not ready to take a
 step forward in establishing protection for non-binary and gender-diverse persons.
 Particularly, the Court is stepping back on defining protective measures by using the
 “European consensus” argument, as was reiterated in the case of Y v. France concerning
 the recognition of a third gender marker for a French inter* person, but also in the case
 of A.H. and others v. Germany in refusing the recognition of a trans* mother as the
 ‘mother’ of her child regardless of her gender marker officially being female.123 This
 does not take away from the importance of reframing the legal discussion around the
 question of gender identity and expression under the Convention. However, it is unlikely
 that the Court will make any significant decision in protecting the interests, but also the
 fundamental human rights, of non-binary, trans* and inter* persons any time soon.
 While the Court seemed to be making a move from the “European consensus” argument
 in deciding matters of L.G.B.T.Q.I.A.+ rights in its Grand Chamber decision in the case of
 Fedotova and others v. the Russian Federation (2023) in redefining the threshold from a
 “consensus” to a simple “ongoing trend”.124 Using this new broader approach, the Court
 narrowed drastically the margin of appreciation of states. It recognised the data brought
 by the Russian Federation regarding the lack of social support for same-sex partnerships
 on its territory, however, it pointed out that the refusal to recognise same-sex
 relationships would constitute a violation of the “underlying values of the
 Convention”.125 In doing so, the Court recognised that even in the absence of a clear
 consensus among European states regarding the legal recognition of same-sex
 relationships, the rights of the minority could not be a “condition on its being accepted
 by the majority”.126 In doing so, it underlined that this approach had the aim of ensuring
 that the rights of minorities under the Convention, in this case, same-sex couples, could
 not be limited by states even when negative public opinion still existed. This decision
 signals a potential change in the approach of the Court to L.G.B.T.Q.I.A.+ questions.
 However, it appears clear from the decision in the case of A.H. and others v. Germany and Y.
 v. France that, if the Court has reached enough confidence to support the rights of
123
    Tissandier-Nasom, E., The refusal of recognition of transgender legal motherhood in the ECtHR’s case of A.H. and others
    v. Germany GHRD (2023), https://ghrd.org/uploads/reports/pdf/49705f0add4c5a9e8759ec5bc3f183f3.pdf.
124
    Tissandier-Nasom, E., Fedotova and others v. the Russian Federation: an Overdue Decision on Same-Sex Relationship
    Recognition, GHRD, https://ghrd.org/uploads/reports/pdf/f08d59e3121e09a8a6ca3d8fb384f1e0.pdf.
125
    Fedotova and Others v. Russia, Apps. Nos. 40792/10, 30538/14, 43439/14, ¶ 52 (Jan. 17, 2023),
    https://hudoc.echr.coe.int/fre?i=002-13971.
126
    Id.


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 same-sex couples,127 it still has a long way to go in being a real support and effective
 remedy to the harm and violations suffered by transgender persons in the Council of
 Europe.128
           Those recent developments show a lack of commitment from the European Court
 of Human Rights in standing for the protection of gender-diverse individuals which echoes
 a strong anti-trans* movement worldwide. As we see the rights, and lives, of trans* and
 non-binary individuals threatened in every corner of the map, it is deplorable that the
 E.Ct.H.R., a human rights body, fails to deliver judgment that upholds the very principles of
 its Convention to the benefit of a political agenda of states. Even looking at the established
 positive obligations to respect one’s gender identity under Article 8, the Court is showing
 a lack of commitment in refusing to extend that obligation, and the protection attached to
 it, to parenthood in the case of A.H. and others v. Germany and the recognition of non-binary
 gender identity in Y v. France.




       3. ORGANISING RECOGNITION: THE “X” GENDER MARKER AS A
       MISSED OPPORTUNITY

 As exposed priorly, the need for legal recognition is primordial to the development of a
 complete and effective framework of protection for non-binary individuals. In this sense,
 national systems have been faced with a challenge: how to recognise non-binary
 individuals’ gender identity within their administrative registries and official
 documents? Most Council of Europe Member States do not offer any option of the sort.
 However, interesting developments have taken place in select countries taking the form
 of the addition of a third gender marker titled “X” - namely Austria, Belgium, Denmark,
 Germany, Iceland, Malta, and the Netherlands. This Chapter will present an exposé of
 the different systems those States have opted for in recognizing gender outside of the
 binary before reflecting on the real impact of such systems in practice on non-binary
 individuals.




127
    Which is even debatable as there has yet been no application of the Fedotova jurisprudence. It is possible
    that the Court took such a progressive decision in this specific case which concerned the Russian Federation
    after its exit from the Council of Europe, thus making it a symbolic decision.
128
    See Fedotova and others v. the Russian Federation, ¶ 52.


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        3.1.        PRACTICALITIES OF NATIONAL FRAMEWORKS: EXPOSÉ OF
        LEGISLATION AND CASE‐LAW IN FORCE IN COUNCIL OF EUROPE MEMBER
        STATES

 During the last decade, a clear trend has been developing in European States adopting
 the “third” or “X” gender marker option as a step in creating a framework of recognition
 and later on protection for individuals who do not fall within the gender binary. This
 development was first rendered possible by a switch in the approach to legal gender that
 was brought about by the Council of Europe Resolution 2048 (2015) which notably seeks
 to abolish medical requirements such as sterilization, medical treatment or mental health
 diagnosis from the process of legal gender recognition.129 While not directly linked to non-
 binary gender recognition, this has for effect of making states get rid of the congruence
 between sex characteristics and gender identity in their legal conceptions. In doing so,
 it creates a space for non-binary identities to even exist within legal systems that were
 long centred around the binarity of sex and gender – hence excluding inter* persons as
 much as non-binary persons. Moreover, in the case of Van Kück v. Germany130 in 2003,
 the E.Ct.H.R. recognised the freedom to determine one’s gender identity as an essential
 part of the principle of self-determination under Article 8 of the E.C.H.R. However, we are
 far from a binding piece of law from the Council of Europe which would oblige states to
 organize non-binary gender registration. Thus, the states that did create a framework
 have done so in slightly different ways, influencing and inspiring each other over time.
 While all creating a similar outcome, an “X” on identification documents (and/or birth
 registration), we can separate the different systems into three sub-categories depending
 on how the State understands the dichotomy of bodily sex characteristic (or “biologically
 assigned sex”) and legal gender.



        3.1.1. WEAK LINK BETWEEN BODILY SEX CHARACTERISTICS AND LEGAL
        GENDER: THE NETHERLANDS, ICELAND, AND BELGIUM

 The first group of countries, constituted of the Netherlands, Belgium, and Iceland have
 enacted gender registration systems which rely on the separation of sex and gender
 understood respectively as biological and social. In this sense, the Netherlands and
 Iceland have opened the possibility to register gender under “X” – as a third category
 separate from the previously recognised binary categories of “male” and “female” – to


129
      Eur. Parl. Ass., Res. 2048, ¶ 6.2 (Apr. 22, 2015).
130
      Van Kück v. Germany, 2003-VII Eur. Ct. H.R., ¶ 73.


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 all individuals without a requirement of physical medical certification.131 The State
 recognises that there is no need for sex to be in congruence with the individual’s gender
 identity and, that gender identity should be given priority in the definition of the
 individual’s legal personality in all aspects of their social life. Thus, both non-binary
 persons and inter* persons can access non-binary gender registration equally.
           Nevertheless, it is fundamental to note that the Netherlands still does require a
 certificate from a designated expert confirming the person’s conviction of their gender
 identity. In practice, this does create a serious blockage to access to administrative
 transition for trans* and non-binary persons in the Netherlands. Already in 2013 when
 the new law was being approved by the Dutch Senate, Human Rights Watch warned that
 such a requirement, coupled with the very limited number of persons designated as
 experts under this law, may create a considerable strain on the system and produce very
 long waiting list for persons requesting this certificate to be able to then access L.G.R.132
 In 2022, this warning has never rung more true with waiting list to access a first
 assessment by gender experts in the Netherlands is of minimum two years.133
           The Netherlands introduced its first “X” gender marker in a decision of the
 Rechtbank Limburg [Limburg District Court] in May 2018134 which was then confirmed by
 the Rechtbank Amsterdam [Amsterdam District Court] in July 2021. The case concerned a
 non-binary applicant who applied for a name change as well as a change of their gender
 marker to an “X” or other neutral denomination. The public prosecutor in the case
 thought that, since an “X” gender marker option had never been granted before, it was
 the initiative of the legislative to decide on such a policy change.135 Ultimately, the Court
 decided that the request was in essence analogous to one of a trans* binary person
 requesting a change of their gender marker to the “opposite sex” in order to see their
 gender identity represented on their legal documents.136
           The interesting point about the Dutch case is the way in which the approach to
 gender neutrality evolved through the examination of the case which concerned an

131
    See The Netherlands: Victory for Transgender rights, Human Rights Watch (Dec. 19, 2013, 11:00 PM), htt
    ps://www.hrw.org/news/2013/12/19/netherlands-victory-transgender-rights#: :text=The%20new%20law
    %20will%20allow,personal%20autonomy%20for%20the%20decision. This new law got rid of the requirement
    for hormone and surgery documentation to access legal gender recognition. It does still require a certificate
    by an expert regarding the mental state of the person.
132
    Id.
133
    See Radboud University and Radboud university medical center research team issues recommendations for better
    transgender care in the Netherlands, RADBOUDUMC (May 9, 2023), https://www.radboudumc.nl/en/news-
    items/2023/radboud-university-medical-center-research-team-issues-recommendations-for-better-
    care#: :text=In%202022%2C%20people%20with%20a,could%20be%20explained%20and%20solved.
134
    Rechtbank Limburg [Rb] [Limburg District Court], 28 mei 2018, Case C/03/232248 / FA RK 17-687,
    ECLI:NL:RBLIM:2018:4931 (Neth.).
135
    See Rechtbank Amsterdam [Rb] [Amsterdam District Court], 21 juli 2021, Case C/13/669890 / FA RK 19-4520,
    ECLI:NL:RBAMS:2021:3732 (Neth.).
136
    Id. § 4.3; see infra Annex 2 for text in Dutch.
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 inter* person having undergone multiple feminizing surgeries that left them unable to
 prove their inter* status. While the Court first ordered chromosome tests in order to
 recognise their non-binary identity, it then shifted its approach to defining gender
 identity as a separate concept. Moreover, the doctor in charge of the medical assessment
 of the Applicant’s status declared that the chromosome test could not be carried out as it
 could not be considered helpful in defining gender identity which the Court was trying
 to establish.137 In this sense, the Court shifted from an approach that was based largely
 on sex characteristics and would have closed off neutral gender registration to
 non-binary individuals and opted for an inclusive and open-to-all system based on
 self-determination.
           Iceland has followed a similar path in allowing non-binary persons access to
 gender-neutral registration without conditions through the Gender Autonomy Act.138
 There are specific elements of the Icelandic system which need to be mentioned.
 Specifically, the Act goes further in adapting national law as it also creates the possibility
 for individuals registered as “X” to take a gender-neutral family name which translates
 to “the child of ” instead of the previously binary “daughter of ” or “son of ”. While the
 gender-neutral registration part of the provisions points to an open system, it is
 interesting to note that this option is only open to individuals registered as “X”, hence
 excluding individuals registered as either male or female.139 Moreover, Icelanders will
 only be allowed to change their gender marker once.                      This raises the question of
 inclusivity in practice, especially regarding individuals who may have changed their
 gender marker prior to the creation of the gender-neutral option but who may wish to
 see themselves referred to as such.
           It is to be noted that the Gender Autonomy Act, which creates this opportunity
 as well as additional recognition and protection for trans* and inter* persons, was passed
 with an eighteen-month delay to adapt the national registration system. Hence, the “X”
 gender marker was open only in January 2021, leaving a very short time to evaluate the
 practical application of the right.




137
    See Pieter Cannoot, De Knuppel in Het Genderhok: Op Weg Naar M/V/X in de Nederlandse Geslachtsregistratie?
    [The Bat in the Gender Loft: on the way to M / V / X in the Dutch Gender Registration?], Tijdschrift Voor
    Familierecht [Journal of Family Law] 49 (2019) (Belg.).
138
    Act on Gender Autonomy 2020, Act No. 80/2019 as amended by Act No. 159/2019, No. 152/2020
    and No. 154/2020, https://www.government.is/publications/legislation/lex/2020/05/08/Act-on-Gender-
    Autonomy/ (Iceland).
139
    See Gender and name registration, Þjóðskrá [Registers], https://www.skra.is/english/e-delivery/gender-
    and-name-registration/ (Iceland) (last visited May 26, 2022).


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 This comes after the 2017 new “Legal Gender Recognition Law”140 which introduced a
 conceptual recognition of the separation of sex and gender by suppressing medical
 requirements such as sterilization in legal gender recognition procedures. It equally puts
 self-determination as the central concern in all procedures regarding trans* individuals.
 However, it strangely upheld the male/female gender binary by not engaging with
 non-binary issues or organizing any gender-neutral legal recognition. However, in 2019,
 the Belgian Constitutional Court rendered a judgment declaring the 2017 “Legal Gender
 Recognition Law” unconstitutional as the lack of a third gender option discriminated
 against non-binary persons.141 Additionally, the law only allowed for individuals to
 change their gender marker once which the Court also declared discriminatory towards
 gender-fluid individuals. As a concluding point, the Court urged the Government to
 legislate on the matter through one of the two following options: the recognition of a
 third gender marker or the abolishment of gender markers as an element of legal
 identity and civil status. The Court has left the implementation of this judgment to the
 will of the Government.                 In the most recent development, the Belgian Federal
 Government has announced that gender markers will be taken off of identity cards in the
 near future.142 Belgium wrestled with the idea of establishing an “X” gender marker in
 developing its new law on gender.                     However, the Government leaned towards the
 suppression of gender markers from identification documents, while still maintaining
 gender registration in the civil registries which cannot be accessed by the public
 directly. This echoes the constant attachment to the gender binary in administrative
 services but does recognise the need to create space for individuals who do not fit said
 binary in the social realm by getting rid of public displays of gender registration status.
 In 2021, it was made public that a group of Ministers within the Government had started
 work on a law proposal to enact such a change in the 2022 agenda.143 In March 2023, the
 Belgian Committee of Ministers approved a law proposal getting rid of the irreversible
 character of the legal gender change procedure allowing individuals to change their

140
    Wet van 25 juni 2017.tot hervorming van regelingen inzake transgenders wat de vermelding van een
    aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan
    betreft [Law on the Reform of Regulations on Transgender People as Regards the Indication of an Adjustment
    of the Registration of Sex in the Civil Status Records and Its Consequences] (Belg.), B.S., July 10, 2017,
    https://www.ejustice.just.fgov.be/eli/wet/2017/06/25/2017012964/staatsblad.
141
    CC [Constitutional Court], June 19, 2019, n° 99/2019, https://www.const-court.be/public/f/2019/2019-
    099f.pdf (Belg.).
142
    See La Belgique étudie la suppression de la mention de genre sur la carte d’identité [Belgium Studies the Deletion of
    the Mention of Gender on the Identity Card], TêTU (Nov. 30, 2021), https://tetu.com/2021/11/30/europe-
    genre-non-binaire-belgique-etudie-suppression-mention-sexe-carte-identite/ (Belg.).
143
    See Par Belga, Le gouvernement fédéral supprime le genre de la carte d’identité [The Federal
    Government Deletes Gender From the Identity Card], Le Soir (Nov.                             30, 2021, 6:40 AM),
    https://www.lesoir.be/409408/article/2021-11-30/le-gouvernement-federal-supprime-le-genre-de-la-
    carte-didentite.


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 name and legal gender multiple times during their life. This is an important step in
 recognizing the rights of non-binary persons in showing an understanding and
 inclusivity of the fluidity of gender, slowly shifting away from binary views.
           A relevant development regarding those countries stems from the propositions
 of the Belgian Constitutional Court. Indeed, news reports point to the idea that the
 Dutch Government is currently entertaining the idea of getting rid of gender markers on
 identification documents as well.144 This marks a logical follow-up to the effective
 distinction between bodily sex characteristics and legal gender and the consecration of
 self-determination and respect for all gender identities. However, it does not constitute
 a complete suppression of gender as a form of legal registration as it would remain, with
 three options (M/F/X), in the administrative registries and, presumably, on the
 individual’s birth certificate and other official documents such as passports.



      3.1.2. WEAK LINK BETWEEN BODILY SEX CHARACTERISTICS AND LEGAL
      GENDER BUT INCOMPLETE IMPLEMENTATION: MALTA AND DENMARK

 Following the same reasoning as the first group of States, Malta and Denmark have
 recognised the possibility for all persons to access a non-binary gender registration
 without requiring any medical certification or any congruence between gender and the
 “sex” of the applicant. In this sense, it can be argued that those States are following in
 the footsteps of the first group and will soon better their system of gender registration to
 be as inclusive as possible. Indeed, the current frameworks leave details untouched
 which can have a serious impact on the effective recognition, and later on protection, of
 non-binary persons wishing to change their gender marker.
           In this sense,          under the Government’s “L.G.B.T.Q.I. Plan of Action”
 (2015-2017),145 the Maltese Government introduced the possibility of registering one’s
 gender with an “X” in November 2017. In order to obtain the change, individuals must
 take an oath in the presence of a notary and fill in the required form. The change only
 concerns identification documents such as I.D. cards and passports146 – meaning that it is

144
    Ingrid van Engelshoven, Ministerie van Onderwijs, Cultuur en Wetenschap [Ministry of Education,
    Culture and Science], Tweede Kamer Voortgangsbrief aanpak onnodige sekseregistratie [House of
    Representatives Progress Letter approach unnecessary sex registration], Rijksoverheid (2020),
    https://www.rijksoverheid.nl/documenten/kamerstukken/2020/07/03/tweede-kamer-voortgangsbrief-
    aanpak-onnodige-sekseregistratie (Neth.).
145
    LGBTQI Plan of Action (2015–2017), Minister for Social Dialogue, Consumer Affairs and Civil Liberties (2015),
    https://meae.gov.mt/en/documents/lgbtiq%20action%20plan/lgbti%20action%20plan%20lo%20res.pdf
    (Malta).
146
    See Legal Gender Recognition and Bodily Integrity, HUMAN RIGHTS DIRECTORATE (last updated Dec. 12,
    2020),    https://humanrights.gov.mt/en/Pages/LGBTIQ%20Equality/Legal%20Provisions/Legal-Gender-


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 not mentioned in any form on the birth certificate of the applicant which will continue
 to disclose the binary gender the person was assigned as birth. Moreover, the “X” was
 chosen to stand for “undeclared”. Thus, it does not so much constitute the recognition of
 a third gender category but rather codifies the non-registration of gender. In this sense,
 the mention of a binary gender/sex on the birth certificate of the individual will be
 referred to when coming across gender-differentiating laws.147
            The Danish system works in a similar manner.                          On November 28th, 2014,
 Denmark passed an executive order aimed at simplifying the legal gender change rules
 which included the possibility to register one’s gender under “X”.148 The impact on
 individuals is comparable to Malta’s framework but is limited in practice as the binary
 gender assigned to the individual prior to the change remains reflected on their social
 security number149 . Indeed, within the Danish social security system, “male” is assigned
 a number ending with an odd digit and “female” with an even one. Individuals have
 recognised the right to have their social security number changed to reflect their gender
 identity but only within the limits of the binary. This means someone could have their
 social security number changed from M to F or F to M but someone whose gender is
 registered as “X” would still have to carry a binary social security number.150



     3.1.3. CLOSE LINK BETWEEN BODILY SEX CHARACTERISTICS AND LEGAL
     GENDER: GERMANY (UNTIL 2022) AND AUSTRIA

 Finally, Germany (until 2022 bill151 ) and Austria follow a similar system which can be
 qualified as closed for non-binary individuals. Indeed, both systems have recognised the
 possibility to register one’s gender as X rather than M or F. However, this opportunity is
 strictly reserved for inter* persons who can prove, medically, their inter* status.


    Recognition-and-Bodily-Integrity.aspx#:%7E:text=The%20’X’%20marker%E2%80%8B%20was,Maltese%20ID
    %20Card%20or%20Passport.&text=Choosing%20to%20have%20an%20’X,gender%20on%20these%20identity
    %20documents (Malta).
147
    See Lena Holzer, NON-BINARY GENDER REGISTRATION MODELS IN EUROPE: Report on third gender marker or no
    gender marker options, ILGA-Europe 78 (2018), https://ilga-europe.org/files/uploads/2022/04/non-binary-
    gender-registration-models-europe.pdf.
148
    Justitsministeriet [Ministry of Justice], Bekendtgørelse om ændring af bekendtgørelse om pas m.v.
    [Executive Order on Amendment of the Executive Order on Passports etc.], BEK nr 953 af 28/08/2014,
    https://www.retsinformation.dk/eli/lta/2014/953 (Denmark).
149
    Even if not commonly mentioned on identity documents, the social security number is part of documents
    the individual will have to disclose on a regular basis.
150
    See Holzer, supra note 147, at 20.
151
    We note that Germany’s position on the matter has been drastically changed by the “Self-Determination Act”
    first introduced in 2022. However, for the sake of the argument, it is interesting to reflect on its approach
    prior to the introduction of the Bill. A reflection on the impact of the bill will be developed at the end of this
    Section.


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 More specifically, on December 14th 2018, the Deutscher Bundestag [German Federal
 Parliament] and the Deutscher Bundesrat [German Federal Council], passed a law which
 introduced a third gender marker option under the term “diverse” to be added to the
 pre-existing “male” and “female” categories. This was initially made possible by a
 decision of the Bundesverfassungsgericht [Federal Constitutional Court] on October 10th
 2017. The Court held that inter* persons should be allowed to register their gender
 outside of the existing binary categories. The decision links sex characteristics, and thus
 the inter* status of the applicant, their gender identity, to their legal gender.152 More
 specifically, the Court reads the provision on the prohibition of discrimination based on
 gender.153
           This shows with no doubt that the Court, whose opinion is the essence of the
 parliamentary decision, views gender identity as the direct translation of (biological)
 sex. The opportunity for “diverse” gender registration is only given to inter* persons
 because they have been recognised as not fitting into the “male” and “female” sex
 categories. Following this logic, a medical certificate is required to access the right.
           An interesting development in the German case is the addition of a fourth option
 by a recent Court decision consisting of the optional suppression of the gender marker
 from the person’s identity documents. This means you could either present a document
 mentioning an “M”, “F”, “X” or no marker.154 This points towards a slight departure
 from the direct connection between (biological) sex and gender as it seems to recognise
 the possibility of having no gender and hence a dissociation of gender identity with the
 sex assigned at birth. This approach by the Court could mean the start of Germany’s
 transition from a closed system to a more inclusive one in echo of the Belgian
 Constitutional Court’s developments. Furthermore, Germany already does not display
 gender on identity cards. In this sense, the upholding of the medical requirements seems
 backwards and inconsistent which points to its potential suppression shortly.
           Similarly, the Verfassungsgerichtshof Österreich [Austrian Constitutional Court] held
 that inter* persons should be granted the possibility to register their gender as other than
 “male” and “female” in a way that conforms with their gender identity.155 Consequently,
 inter* persons are now allowed to register as either “inter”, “other” or “X”. In doing so, it
152
    Bundesverfassungsgericht (BVerfG) [Federal Constitutional Court], Oct. 10, 2017, 1 BvR 2019/16, §§ 1, 35
    (Ger.).
153
    Id. § 36.; see infra Annex 2 for original text in German.
154
    Since 2013, Germany has created a “blank” option for gender registration, nevertheless
    this option was not open to non-binary persons but rather reserved for inter* infants
    whose gender identity could not be determined at birth in order to let the parents/doctors
    come to a conclusion in the months following the birth.            Bundergerichtshof [BGH] [Federal
    Court of Justice] Apr.               22, 2020, XII ZB 383/19, http://juris.bundesgerichtshof.de/cgi-
    bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=106062 (Ger.).
155
    Verfassungsgerichtshof [VfGH] [Constitutional Court], June 15, 2018. Erkenntnisse und Beschlüsse des
    Verfassungsgerichtshofes [VfSlg] No. 77/2018-9 (Austria).
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 recognised that limiting the term “gender” in the Austrian Constitution to binary genders
 would amount to a violation of Article 8 of the European Convention on Human Rights
 which has constitutional status in Austria.156 The Austrian decision referred directly to
 the decision of the German Constitutional Court, particularly putting forward the idea
 that “gender assignment. . .typically plays a key role both in a person’s self-perception
 and in the way this person is perceived by others”.157 This sentence in itself seems to point
 at the possibility of opening gender categories to non-binary persons. However, Austria
 stays in line with the German approach by connecting directly gender to sex. In this sense,
 the use of the word “gender” by the Court is to be understood as referring to biological
 sex as it is only understood when the biologically defined sex and gender categories are
 in congruence – hence an inter* person identifying outside of the binary.
           In June 2022, the German Government first introduced a “Self-Determination
 Act” which enacts a move towards self-identification for all without medical gatekeeping
 of any sort and includes access to the diverse category and “X” marker.158 The Bill opens
 the possibility for adults and minors over fourteen years of age to change their
 registered gender and/or name freely once a year, every year.                               The Government
 introduced the Bill to highlight that “in many areas, society is further ahead of
 legislation. As a [Government], we have decided to create a legal framework for an open,
 diverse and modern society”.159 This is an interesting take as it echoes directly the basis
 of this research in arguing that gender is a largely fluid social construct that belongs in
 the social sphere and is not intelligible efficiently by the legal system. In allowing for
 this change, Germany pulls itself above other systems and recognises fully the rights of
 all to see their gender identity recognised by the State, including when it may vary over
 time with the possibility to change one’s registered gender once a year. Nevertheless, a
 discussion on the appropriateness of the practice of registering gender is necessary and
 will be carried out later on in this paper.                         Indeed, while such a system of
 self-identification is what is hoped for in light of the current route taken by European
 states in creating third-gender categories, it may not be the adequate answer to the
 infinite variability of human experiences of gender.


156
    See Austria: Court Allows Intersex Individuals to Register Third Gender Other Than Male or Female, LIBRARY OF
    CONGRESS (July 6, 2018), https://www.loc.gov/item/global-legal-monitor/2018-07-06/austria-court-allows-
    intersex-individuals-to-register-third-gender-other-than-male-or-female/ (Austria).
157
    Verfassungsgerichtshof [VfGH] [Constitutional Court] June 15, 2018. Erkenntnisse und Beschlüsse des
    Verfassungsgerichtshofes [VfSlg] No. 77/2018-9 (Austria), § 31.
158
    See Kirsten Sibbald, Germany Introduces New Gender Recognition Procedure : Proposal would replace antiquated
    system, HUMAN RIGHTS WATCH (Oct. 21, 2022, 1:22 PM), https://www.hrw.org/news/2022/10/21/germany-
    introduces-new-gender-recognition-procedure.
159
    See Emily Chudy, Germany to introduce landmark self-ID law as part of sweeping reform of LGBTQ+ rights, PINKNEWS
    (Aug. 09, 2022), https://www.thepinknews.com/2022/08/09/germany-trans-rights-self-id/.


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        3.1.4.     COMPARATIVE TABLE: RECOGNITION OF A “THIRD” GENDER
        CATEGORY IN STUDY COUNTRIES




 (*).160
 (**). Those countries are currently moving towards the suppression of gender markers on
 identity documents (excl. passports).
 (***).161

160
      Hormone therapy, surgery, sterilisation.
161
      A bill was presented to the Dutch Parliament to abolish the diagnosis requirement for L.G.R.
      procedure on the 3rd of May 2021 but has yet to be discussed. See “Wijziging van Boek 1 van
      het Burgerlijk Wetboek in verband met het veranderen van de voorwaarden voor wijziging van
      de vermelding van het geslacht in de akte van geboorte” [Amendments to Book 1 of the Civil
      Code in Connection with Changing the Conditions for Changing the Indication of the Sex in the
      Deed of Birth], Tweede Kamer der Staten-Generaal [Second Chamber of the Parliament] (2021),
      https://www.tweedekamer.nl/kamerstukken/wetsvoorstellen/detail?id=2021Z07392dossier=35825 (Neth.).


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      3.2.       THE “X” GENDER MARKER AS A MISSED OPPORTUNITY IN
      CONSECRATING RECOGNITION AND PROTECTION FOR NON‐BINARY
      INDIVIDUALS

 Recognising a “third gender” option in legal gender registration may directly increase the
 social visibility of non-binary persons. Additionally, the introduction of the “X” gender
 marker by Denmark and others has allowed for the initiation of a European discussion
 on the inadequacy and unnecessariness of the gender binary.162 This corroborates the
 observation made in Chapter 1 that legal recognition of gender identity is fundamental in
 protecting non-binary persons – see for instance the United Kingdom survey showing that
 non-binary persons’ mental health and self-esteem is directly affected by the absence of
 legal recognition and social visibility.163 In this sense, the establishment of an “X” marker
 creates a space for non-binary persons to exist in the legal sphere by officially recognising
 their “position [as a] person within the legal system”.164 Moreover, it may facilitate data
 collection regarding non-binary persons to build affirmative action to respond to specific
 issues the community faces.165
             However, several drawbacks may be associated with the creation of an “X” legal
 gender category. Therefore, we will first look at the overall inappropriateness of third-
 gender markers as a response to the need for non-binary inclusion in law and society,
 before going more in-depth into the risks and dangers such an approach may entail for
 the concerned individuals.



      3.2.1. OVERALL INAPPROPRIATENESS

 An interesting illustration to introduce the inappropriateness of “X” gender markers is
 the case of Pakistani Khawaja Sira, a non-binary identifying community which, despite
 having the possibility since 2018 to register their gender as “X” has, in the majority,
 chosen to keep their “M” gender marker.166 Following this, it can be argued that the
 benefits of opening up legal recognition outside of the binary may be purely symbolic if

162
    See Holzer, supra note 147, at 39.
163
    See VIC VALENTINE, NON-BINARY PEOPLE’S EXPERIENCES IN THE UK (2016); Greta R. Bauer et al., Intervenable Factors
    Associated with Suicide Risk in Transgender Persons: A Respondent Driven Sampling Study in Ontario, Canada, BMC
    PUB. HEALTH (2015).
164
    Press Release No.               95/2017, Bundesverfassungsgericht [BVerfG] [Federal Constitutional
    Court], Civil Status Law Must Allow a Third Gender Option (Nov.                                      8, 2017),
    https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2017/bvg17-095.html
    (Ger.); see also Clarke, supra note 16, at 937.
165
    See Clarke, supra note 16, at 937.
166
    See Holzer, supra note 147, at 39.


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 it entails further precarity and even loss of rights.167                   In other words, recognition
 through an “X” marker may be “purely expressive” in that it only aims to accommodate
 non-binary identities so far as it does not disrupt the binary in other institutional
 settings.168 This is perfectly illustrated by the case of Denmark. In creating an “X”
 gender marker, the state opens a form of legal recognition for non-binary persons which
 appears beneficial on the surface, but in reality does not extend to respect in all aspects
 as, for example, a binary gender remains mentioned and accessible to all on the
 individual’s social security number. Thus, in such cases, the creation of a “third gender”
 category can be seen as a small concession of the majority to integrate non-binary
 individuals while preserving the binary where it serves its interests. More specifically, it
 might also be linked to the perceived costs of accommodating the system for non-binary
 persons which can act as a political deterrent to creating full effective recognition and
 protection outside of the binary.169 Additionally, it is necessary to consider that the
 choice of the “X” gender marker might be one of convenience as well as it was
 pre-existent in most countries in different contexts.170 For instance, it is a routinely
 established procedure in the Netherlands to register children under “X” when the
 sex/gender cannot be defined directly at birth.171
           Furthermore, the “X” gender marker does not create effective recognition for all
 non-binary persons. By adding an “X” category to the previously recognised “M” and
 “F”, the states only expand the list of legally accepted gender classifications from two
 options to three. As established priorly, “non-binary” needs to be understood as an
 umbrella term which covers a multitude of specific gender identities. In this sense, a
 single “X” option may not encompass all non-binary identities.172 While it may satisfy
 some non-binary individuals, it appears clear that it does not adequately represent
 persons who do not identify with one fixed gender (gender-fluid), no gender at all
 (agender) or even persons who define their gender identity as a mix of male and female.
 While one could argue that the “X” is a starting point for opening up more alternative
 gender categories in the future, it needs to be noted that the law is not an instrument
 made to deal with infinite variations.173 For instance, a system like the one adopted by


167
    Id.
168
    See Clarke, supra note 16, at 939.
169
    See id.
170
    See, e.g., Holzer, supra note 147, at 19 (reference to Malta).
171
    See Marjolein van den Brink & Jet Tigchelaar, M/F and beyond Gender Registration by the State and the Legal
    Position of Transgender Persons (English Summary), Ministerie van Veiligheid & Justitie [Ministry of Security
    & Justice] (2014), https://repository.wodc.nl/bitstream/handle/20.500.12832/2087/2393-summary_tcm28-
    73314.pdf?sequence=4&isAllowed=y (Neth.).
172
    See Holzer, supra note 147, at 40.
173
    See Clarke, supra note 16, at 939.


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 social media platforms such as Facebook/META174 where one can fill in freely a blank
 space defining their gender identity, is hardly viable for the legal sphere. Indeed, states
 and legal authorities are usually averse to what Clarke qualifies as “inauthenticity and
 disuniformity”.175 A counter-example to this may lie in the approach taken by Tasmania
 which allows individuals to self-determine their gender identity without any medical
 gate-keeping and without limitation on the category they wish to see reflected on their
 documents. However, it is fundamental to note that Tasmania remains a small state with
 a small population which makes the management of such an administrative diversity
 more plausible. Nevertheless, it remains an approach that may come in handy when
 arguing for the unnecessary character of gender as a legal category. Indeed, it shows
 that there is no need for the state to have certainty regarding the possible gender
 categories in the civil status (since individuals can fill in a blank space as they please)
 while still having a very developed anti-discrimination system which provides effective
 protection for trans* including non-binary persons and inter* persons. In a sense, the
 infinite possibilities of gender categories have a similar effect on the gendered basis of
 the legal system as the suppression of gender as a legal category.
           Inauthenticity refers to the risk of fraud that could arise when individuals are
 allowed to make claims regarding their identity without a fixed framework controlled by
 the state. More specifically, when affirmative action, organized to diminish the harm and
 disadvantages suffered by a specific community, is being combined with a form of self-
 determination, authorities may have concerns that one might attempt to benefit from
 such advantages on a fraudulent basis.176 This argument is omnipresent in the discourse
 about trans* and non-binary person’s existence in society – see for example the often-
 mentioned argument that men might fraudulently assert themselves as female to enter
 women’s bathrooms or participate in women’s sports. To this end, elective systems of
 self-determination for gender identity registration do not allow the state to ensure that
 an individual will truthfully “belong” to the category they assert themselves to be and
 thus ensure that the individuals will take on the burden as much as the advantages that
 come with being in such a legal category.177
           The second obstacle is the lack of uniformity that a free-elective system for
 gender registration would create for the state legal system. Clarke draws the connection

174
    See Meta Diversity, FACEBOOK (Feb. 26, 2015), https://www.facebook.com/MetaDiversity/posts/77422158267
    4346.
175
    See Jessica A. Clarke, Identity and Form, 103 CALIF. L. REV. 747, 767 (2014).
176
    See, e.g., Tseming Yang, Choice and Fraud in Racial Identification: The Dilemma of Policing Race in Affirmative
    Action, the Census, and a Color-Blind Society, 11 MICH. J. RACE & L. 367, 369 (2006) (studies made regarding the
    complicated regulation of Hispanic and Native Americans categories in the United States).
177
    See Clarke, supra note 175, at 768.


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 between such an approach and the numerus clausus principle in property law.178 In this
 sense, the legal system offers a limited number of options when registering the
 individual’s gender identity for similar administrative purposes as there are limited
 standard forms for property registration. This is not to disregard that individuals may
 identify in an array of manners but to highlight that this multitude may not always be
 intelligible legally as it entails a more individualized approach to legal registration
 which, once again, implies a higher administrative cost both in terms of money and
 time.179 Following this, the state’s interest in recognizing infinite, or even simply some
 additional, gender categories is overpowered by the burden it would place on its
 administrative and legal branches.
           The response of states to those obstacles has so far been to limit the recognition
 of non-binary individuals to “one-third” gender category – thus limiting the cost and
 maintaining a form of control over the criteria of accession to the category as well as the
 extension of said recognition.
           Finally, it may be added that the choice of the letter “X” or the category of
 “unspecified” gender is fundamentally disrespectful to non-binary persons regardless of
 their overall inappropriateness. Florence Ashley states in her article regarding the
 introduction of the “X” gender marker in Canada that they “would not be satisfied with
 ‘X’ as a gender marker”.180 They go on to argue that the “X” marker, when referring to
 an “unspecified” gender category, is fundamentally not in line with the demands of
 non-binary individuals in the sense that it does not effectively create a third category
 but implies that one’s gender remains either male or female but simply that the person
 does not wish to disclose which one of the two. Going back to the discussion on the social
 visibility of non-binary persons about the established binary of sex and gender (i.e.,
 Chapter 1), the choice of “X” as the mark of a “third gender” reflects directly how
 non-binary persons are perceived as inferior subjects of law. In grouping all non-binary
 identities under this concept of “unknown” gender, the law implies that “non-binary” is
 on the same level of specificity as “male” and “female”. However, those are specific
 gender identities that are comparable to specific non-binary identities such as agender
 or genderfluid. To this end, the antonym of non-binary is binary and not “male” and
 “female”.181 Therefore, in limiting legal gender categories to “M”, “F” and “X”, states
 subsume all non-binary gender identities within one unspecified category and, more

178
    Id. at 769.
179
    Id.
180
    See Florence Ashley, ‘X’ Why? Gender Markers and Non-Binary Transgender People, in TRANS RIGHTS AND WRONGS:
    A COMPARATIVE STUDY OF LEGAL REFORM CONCERNING TRANS PERSONS 33 (Isabel C. Jaramillo & Laura Carlson eds.,
    2021) (Switz.).
181
    Id. at 38.


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 specifically, openly classify them as less deserving than binary categories of gender.182
 This echoes directly how non-binary identities are perceived socially in the European
 States.183 To this needs to be added the obvious observation that the choice of the letter
 “X” as the marker for non-binary persons is a further illustration of the approach of
 states to non-binary identities as it is commonly used in all languages to designate
 anonymity.



      3.2.2. FURTHER RISKS AND COUNTER‐PRODUCTIVENESS

 More than concerns linked to the inadequacy of the “X” option as a source of recognition
 for non-binary persons, it may also be counterproductive as it may create new risks for
 individuals concerned. Thus, while supposedly being the first step towards effective
 protection, it may in reality bring new challenges to the security and dignity of
 non-binary persons. Two main areas of concern arise the reinforcement of stereotypes,
 violence and stigma and the growing power of the state over personal matters of gender
 identity.
           Firstly, the “X” gender marker is likely to create further marginalisation and
 discrimination, if not direct violence, against non-binary persons. Indeed, it needs to be
 considered that the mere creation of this third category may reinforce stereotypes by
 creating exclusionary social categories – even within the non-binary community.184 In
 this sense, it creates a new “package” of stereotypes for what is meant to characterize a
 non-binary person.185 For instance, there is a risk of seeing the non-binary community
 itself classifying persons from legitimate to illegitimate as part of the community
 depending on whether they have changed their gender marker to “X” or not.
           Moreover, even when individuals decide freely to change their gender marker to
 “X”, the mere mention of a gender-neutral category on their identification documents
 will likely bear stigma. Even in societies where non-binary persons were considered holy
 and divine in tradition, the legal recognition of a third gender has contributed to the
 subordination of those groups and an increase in discrimination against them.186 Take
 for example the Hijras community in India.187 Supporting this, I found, after asking over
182
    See Dylan Amy Davis, The Normativity of Recognition: Non-Binary Gender Markers in Australian Law and Policy, in
    24 GENDER PANIC, GENDER POLICY 227, 250 (Vasilikie Demos & Marcia Texler Segal eds., 2017).
183
    See supra Section 1.1.
184
    See Clarke, supra note 16, at 939.
185
    See Mary A. C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and
    Feminist Jurisprudence, 105 YALE L. J. (1995).
186
    See Dipayan Chowdhury & Atmaja Tripathy, Recognizing the Right of the Third Gender to Marriage and Inheritance
    Under Hindu Personal Law in India, BRICS L. J. 43, 48-49 (2016).
187
    Id. As a framework of reference, Pakistan created an “X” gender marker in 2018 and India has had a form of
    three-category gender registration model since 2005 (modified in 2009).

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 100 individuals who self-identified as non-binary188 , that a strong majority declared that
 they would not feel safe having an “X” mentioned on their identification documents.189
 Responses to the open question in the questionnaire reveal that most non-binary
 individuals do not believe that their societies are safe for non-binary persons and that
 the “X” mentioned on their identification document would put them in danger of
 discrimination and violence if exposed to the wrong persons.190



      3.3. RESULTS OF THE SURVEY CARRIED ON DURING THIS RESEARCH




 This echoes the point made in Chapter 1 regarding the vulnerability of non-binary
 persons in European societies. Adding to this all daily occurrences when one is required
 to show an identification document, including when coming in contact with law
 enforcement, it is clear that having an official mark of their non-binary gender identity
 could expose individuals to increased risks of discrimination and hate-motivated
 violence. Moreover, this goes back to the idea of a right to not have to conceal one’s
 gender identity, as it is a fundamental part of one’s identity, to ensure one’s safety
 articulated in Chapter 2.
           Secondly, by creating a new “gender category”, the “X” gender marker laws
 follow the traditional legal and social constructive norms for gender categories. As
 exposed before, if men are only men because they are not women and vice-versa, then it
 is the same for non-binary as a category.191 To this end, legal categories are created
 through normative exclusions and thus organise the opposition between what belongs in

188
    Keeping in mind that non-binary is an umbrella term, hence most participants also mentioned the specific
    gender identity they identify with which impacts the way in which they think of the “X” gender marker as
    it might be more or less aligned with the way they perceived their non-binary identity.
189
    See infra results of my questionnaire in Annex 1.
190
    See infra results of my questionnaire in Annex 1.
191
    See supra Section 1.1.


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 a certain category and what does not.192 In other words, the creation of legal gender
 categories creates the separation between the “legitimate” and the “illegitimate” gender
 identities. In doing so, it equally creates a responsibility for authorities in charge of the
 law to exercise a form of control over who is “truly” non-binary and who is not. By
 analogy, Clarke refers to the developments of racial categorising which, in practice, did
 not create more liberation or empowerment for racial minorities but rather was
 implicitly used as a tool of subordination.193 Furthermore, as mentioned earlier in this
 Chapter, the state’s willingness to accommodate the law to include new categories, such
 as non-binary persons when it comes to gender, is largely limited by the cost and effort
 required to render it effective. In this sense, there is one more consideration to add to
 the equation when reflecting on the state’s interest in creating a third gender category:
 the “lesser” cost. Indeed, because legal categories need be of a limited amount, the state
 concedes that one extra category is necessary, regardless of the administrative cost its
 creation might incur, to avoid the other option which would represent a much larger
 legal and administrative deconstruction: the suppression of gender from administrative
 registration or legal documents. The inclusion of non-binary persons in this new “third”
 category, however inadequate it might be in practice, replies to a social need and
 demand of a certain part of society and in consequence reduces the pressure on the state
 to give up its power to control gender identity through law.194 Thus, in creating a third
 gender category, the state creates the illusion of inclusion while increasing its power of
 control over an individual’s core identity. It can be argued that, where access to legal
 gender change is fully organised around individual self-determination, there is no intent
 of control on behalf of the state. However, such systems, like in Malta, only give the
 individual freedom within the classifications the state has deemed legitimate. This is
 further supported by the example of Denmark where the individual is free to
 self-determine their gender but only to the extent that it does not encroach on other
 state prerogatives such as the binary gender differentiation for matters of social
 security. In this sense, it is exaggerated to consider that those systems rely completely
 on self-determination, also since some still require a diagnosis to even access L.G.R.
 procedures.195        In this sense, it may be inaccurate to say that they rely on pure
 self-determination, however, in practical terms, they offer significantly more accessible
 and protective L.G.R. procedures while thriving towards full self-determination.                                 In
 addition, this same reasoning is even more evident in systems that limit access to the “X”
192
    See Holzer, supra note 147, at 40.
193
    Case, supra note 185; Clarke, supra note 16, at 940.
194
    See Paisley Currah, Transgender Rights Without a Theory of Gender ?, 52 TULSA L. REV. 441, 445-46 (2017); Clarke,
    supra note 16, at 940.
195
    See supra Comparative Table in Section 3.1.4.


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 gender marker to inter* persons with a medical certificate requirement (Germany,
 Austria). Indeed, in such systems, the state exercises explicit control over who may
 receive the third gender marker, creating a clear normative framework regulating
 non-binary bodies even stricter than it regulates male and female sex classifications.
 Going back to the argument made in Chapter 1, non-binary persons are once again put
 outside the norm, only allowed to qualify as legal persons when they fit the framework
 organised by the state – which is either fairly accessible in self-determination-based
 systems, or almost impenetrable. In light of this, it can be argued that the “X” gender
 marker allows the state to somehow “domesticate” non-binary identities.196 In other
 words, it includes non-binary in the norm to exercise control over its limits and
 implications.
               Following the observations and conclusions made in this Chapter, it is legitimate
 to ask: then what is the better option? Indeed, all said above is not to deny the serious
 claim for legal recognition and protection for non-binary persons, but simply to show
 that the “X” gender marker, as the option favourited by European states so far, is neither
 appropriate nor desirable in responding to this claim. Rather, it points toward the other
 option, as put forward by the Belgian Constitutional Court197 : the suppression of gender
 registration or official documents.




          4. ENACTING THE END OF GENDER ON IDENTITY DOCUMENTS OR
          AS A LEGAL CATEGORY

 In this last Chapter, I will explore an alternative avenue for the adequate legal
 recognition of non-binary identities and subsequent effective protection:                                            the
 suppression of gender markers or gender registration altogether. After looking at the
 benefits of such an approach and the legal basis pre-existing for it, I will equally expose
 the risks inherent to such an approach, particularly in the context of gender equality.




196
      See Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas, 104 COLUM. L. REV. 1399, 1399 (2004).
197
      See Federale Overdheidsdienst Justitie, 25 juni 2017.- Tot Hervorming van Regelingen Inzake Transgenders wat de
      Vermelding van een Aanpassing van de Registratie van het Geslacht in de Akten van de Burgerlijke Stand en de Gevolgen
      Hiervan Betreft, ejustice.just.fgov.be (Jul. 10, 2017) [Law on the Reform of Regulations on Transgender People
      as Regards the Indication of an Adjustment of the Registration of Sex in the Civil Status Records and Its
      Consequences], https://www.ejustice.just.fgov.be/eli/wet/2017/06/25/2017012964/staatsblad.


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      4.1. REMOVING GENDER FROM IDENTITY DOCUMENTS OR REGISTRIES

 As of today, no European states, or any other state, have enacted the total suppression of
 gender in civil registration.198           However, Germany does not display an individual’s
 gender on their identity cards (not passports). In this sense, the decision of the German
 Constitutional Court which empowered the State to create the “X” gender marker is a
 great starting point.199 In its decision, the Court pointed out that there were two ways to
 answer the applicant’s request and to ensure the proper legal recognition of non-binary
 persons:      the creation of a third gender category or the suppression of gender
 registration altogether.200 To this end, the Court highlights that the system of gender
 registration is only discriminatory against non-binary persons when it is a mandatory201
 part of the public registration. Therefore, if the State were to get rid of gender as a legal
 category there would no longer be any issue arising regarding any potential lack of legal
 recognition for all gender identities. However, the suppression of gender as a legal
 category is a tricky question. First of all, it can refer to very different applications in
 practice: the suppression of gender markers from (all or some) identity documents while
 maintaining gender as an identifier in civil registries and other official documents –
 which Germany did subsequently –, or the suppression of gender as a legal category
 altogether meaning the state would give up all access to individual’s gender information.
 While both attain a form of gender neutrality that would protect non-binary individuals
 in their daily lives from having to conceal or disclose their gender identity, the first
 option is limited as the state retains power over gender as a legal category, meaning it
 could be used for various purposes such as affirmative action but also gender
 differentiating laws. To shed light on the possible vices and virtues of getting rid of
 gender on identity documents or as a whole, it is necessary to first look at the arguments
 put forward by states, particularly Germany, in rejecting the option.                              Then, this
 Subchapter will expose the absurdity of “gender                 markers”202      and present the existing
 legal basis to support the end of gender as a legal category.
           When it was faced with the Constitutional Court judgment, the German
 Government had to enter a discussion on the necessity of gender markers or even of

198
    See Holzer, supra note 147, at 44.
199
    See BVerfG, 1 BvR 2019/16, Oct. 10, 2017, https://www.bundesverfassungsgericht.de/SharedDocs/Entschei
    dungen/DE/2017/10/rs20171010_1bvr201916.html.
200
    CC [Constitutional Court], Juin 19, 2019, n° 99/2019, https://www.const-court.be/public/f/2019/2019-
    099f.pdf.
201
    This points to another possibility for the state: making gender registration optional. However, the risks and
    inherent issues with this options are similar to the ones attached to the “third” or “X” gender marker as will
    be exposed further later on in this Chapter.
202
    See Ashley, supra note 180, at 40.


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 gender as a useful legal category altogether. The draft document for the law that later on
 introduced the “X” gender marker, presented the obstacles to picking the second option
 – the suppression of gender markers.203 Its main argument in doing so was two-fold.
 First, German law relies on gender in several areas and the suppression of gender would
 require the amendment and re-writing of a considerable part of the national legislation,
 something that the Government was not inclined to do.204 Second, the Government
 relied on its commitment to the U.N. International Civil Aviation Organisation
 [hereinafter I.C.A.O.] which sets international standards for air travel and therefore
 passport requirements. The currently enforced I.C.A.O. standards require the mention of
 a gender marker (“sex”) on passports205 – while allowing for a third option in the form of
 an “X”, it does not allow the suppression of gender from passports and other
 machine-readable documents compatible with international travel.206                            Interestingly
 enough, the I.C.A.O. requirement of gender has been questioned before but was upheld to
 this day. Through a review discussion of the gender marker requirement started by the
 Government of New Zealand, the I.C.A.O. argued that the removal of gender from
 machine-readable travel documents would engage too high of a cost for border control
 agencies and states to upgrade all software to be able to process new documents that do
 not show a gender marker.207 However, the I.C.A.O. does see the benefits of removing
 gender makers in theory as it does highlight that it would create a safer travel
 environment for trans* persons, it would ensure the issuance of fewer incorrect
 documents since less information would need to be collected and finally it would show
 the I.C.A.O. as a trailblazing organisation.208 Simply, it does not consider that those
 benefits outweigh the costs of enacting the change just yet.



203
    Referentenentwurf [Draft Bill].        Bundesministeriums für Inneres, für Bau und Heimat [Federal
    Ministry of the Interior, Building and Homeland]. Entwurf eines Gesetzes zur Änderung der in
    das Geburtenregister einzutragenden Angaben [Draft law amending the birth register] (n 113) 7,
    https://www.bmi.bund.de/SharedDocs/downloads/DE/gesetzestexte/gesetzesentwuerfe/entwurf-
    aenderung-personenstandsgesetz.pdf?__blob=publicationFile&v=1 (Ger.); see also Holzer, supra note
    147, at 45.
204
    For instance, see the differentiation in regime for divorce depending on gender.
205
    This requirement is limited to passports and machine readable travel documents, hence it does not exclude
    the suppression of gender from other identity documents. However, Germany relied on these provisions and
    the necessity for harmony between all identity documents. Interestingly, this is how the Dutch Government
    justified the possibility of moving forward with the abolition of gender markers on identity documents (excl.
    passports).
206
    Int’l Civil Aviation Organisation (I.C.A.O.), Machine Readable Travel Documents, Part 6: Specifications
    for TD2 Size Machine Readable Official Travel Documents (MROTDs), at 10, Doc 9303 (2021),
    https://www.icao.int/publications/Documents/9303_p6_cons_en.pdf.
207
    Int’l Civil Aviation Organization (I.C.A.O.), A review of the requirement to display the holder’s
    gender on travel documents, TAG/MRTD/21-IP/4 (Nov. 20, 2012), .https://www.icao.int/Meetings/TAG-
    MRTD/Documents/Tag-Mrtd-21/Tag-Mrtd21_IP04.pdf.
208
    Id.


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 Going more in-depth in reflecting on the necessity of gender markers and gender as a
 legal category altogether, it is fundamental to point out that all arguments put forward
 by the Government of Germany and the I.C.A.O. are purely practical matters rather than
 linked to a strong belief that gender is a fundamental characteristic of the individual. It
 is mainly, because “that is how it’s always been done”. In this context, authorities just
 pass on the blame. The governments argue that they cannot change it because they are
 bound by the I.C.A.O. standards. In addition, those standards have been endorsed under
 the Council of the European Union Regulation 2252/2004 which makes direct reference to
 the I.C.A.O. in Article 2 and makes it doubly binding on the states.209 The I.C.A.O. argues
 that the suppression of gender would undermine the inclusion of individuals in national
 settings where gender is used to differentiate between people, for instance when spaces
 are separated between genders.210 An interesting parallel to establish is the one with race
 and religion. Indeed, gender is not the first unnecessary legal category to be presented
 on travel documents, racial and religious markers used to be mentioned on identification
 documents and similarly used as a means of segregating spaces.211 Both are no longer
 required on travel documents in European states and, even more, are rarely considered to
 be legitimate ways for the state to register individuals.212 This is also true of the mention
 of marital status.213 Where a difference in opportunities is based on race or religion, the
 E.Ct.H.R. has usually found a violation of the prohibition of discrimination under Article
 14 of the Convention.214 Thus, proving it is not impossible to have both the suppression
 of such characteristics as legal categories and in such gender as well, while still effectively
 providing comprehensive protection based on those social markers. Just because race,
 religion, or even gender, are erased from civil registries or identification documents, does
 not mean that they are erased in the eyes of the justice system.
           Moreover, the mention of gender does not provide essential information that
 would render the identification of a person much easier. This is particularly true in a
 time where facial recognition and other biometrics software are widespread nowadays

209
    Council Regulation (EC) No. 2252/2004 of 13 December 2004 on Standards for Security Features and
    Biometrics in Passports and Travel Documents Issued by Member States, 2004 O.J. (L 385), https://eur-
    lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32004R2252.
210
    Id.
211
    See, e.g., the separation of bathrooms, sports environment, healthcare, and others according to gender;
    Clarke, supra note 16, at 942; Clarke, supra note 175, at 800.
212
    In some states like Germany or Austria religion can be added to the birth certificate in later life if the
    individual desires it, but it is not a requirement; see Holzer, supra note 147, at 45-46.
213
    See Neela Goshal & Kyle Knight, Netherlands Sees No Role for Gender Marker on ID Documents, HUMAN RIGHTS
    WATCH (July 8, 2020), https://www.hrw.org/news/2020/07/08/netherlands-sees-no-role-gender-marker-
    id-documents.
214
    See, e.g., Holzer, supra note 147, at 46 the system of Bosnia and Herzegovina which used registered religion as
    a defining criteria when standing for election concerning which the European Court of Human Rights found
    a violation in the case of Sejdić and Finci v. Bosn. & Herz., 104 Eur. Ct. H.R. 4 (2009).


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 and offer a significantly more accurate way of ensuring one is who they say they are.
 More than this, the mention of gender, while not particularly helpful in general, is
 actually detrimental to the trans* community and particularly to non-binary persons
 and any trans* person whose presented gender identity does not match their gender
 marker. In this sense, an overwhelming majority of non-binary respondents to my
 questionnaire (78.6%) indicated that they want the mention of gender taken off their
 identity documents.215 This echoes the fact that they do not or would not feel safe
 holding an “X” 216 or an inadequate gender marker.217
 While from a legal standpoint, the I.C.A.O. standards requirement is an obstacle that
 cannot be ignored, there is a significant legal basis to argue for its inconsistency with
 modern times and thus to argue for the removal of gender from identity documents or
 registries. First of all, it is important to mention that the I.C.A.O. standards themselves
 did not include gender as a mandatory mention on travel documents until the current
 standards were set in 1980.218 Furthermore, the Yogyakarta Principles calls clearly in
 Principle 31 for the termination of gender registration:

            Ensure that official identity documents only include personal
            information that is relevant, reasonable and necessary as required by
            the law for a legitimate purpose, and thereby end the registration of
            the sex and gender of the person in identity documents such as birth
            certificates, identification cards, passports and driver licences, and as
            part of their legal personality.219

 The position taken by the Council of Europe in its Resolution 2191 (2017) on the rights of
 inter* people proposes a different, and weaker, approach: “With regard to civil status and
 legal gender recognition . . . consider making the registration of sex on birth certificates
 and other identity documents optional for everyone”.220
          However, this proposal does not argue for the direct, complete, removal of
 gender but rather for making it an optional mention. Thus, individuals could request the
 removal of gender from their identity documents but it would remain mentioned on
 such documents of people who do not do so. This approach is very limited as it would
 bring back similar concerns brought up by the creation of a “third” gender marker in
215
    See infra Annex 1 for results of my questionnaire.
216
    See infra Annex 1 for results of my questionnaire.
217
    See supra Section 1.2.
218
    See Goshal & Knight, supra note 213.
219
    Yogyakarta Principles plus 10, supra note 54, at Principle 31.
220
    Eur. Parl. Ass., Promoting the human rights of and eliminating discrimination against intersex people,
    35th Sess., Res. No. 2191, § 7.3.4. (2017), http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-
    en.asp?fileid=24232&.


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 practice. Indeed, it is to be expected that, in such a scenario, individuals who would
 request the removal of gender from their documents would be in the majority of persons
 who feel uneasy, or unsafe, with the mention of their legal gender.                                    Therefore,
 individuals who would present an identification document that does not mention a
 gender while others still do would be at risk of implicitly disclosing that they are
 non-binary or, at the very least, would be presumed to be. Then all concerns regarding
 the unwanted disclosure of gender identity exposed in Chapter 3 would arise again.
 Additionally, it needs to be mentioned that the removal of gender from identity
 documents and further the suppression of gender as a legal category altogether, is one of
 the predominant demands from the wider trans* and inter* communities. For instance,
 it was heavily supported in the Malta Declaration221 which puts forward the conclusions
 of the Third International Intersex Forum held in 2013. This points to the idea that all
 concerns expressed priorly concerning the inadequacy of the creation of a “third”
 gender category would be resolved through the suppression of gender.
            Therefore, the removal of gender markers from identity documents would
 provide relief to non-binary individuals, and many other trans* or inter* persons, while
 not creating real obstacles to the control of identity by authorities.222 It might be argued
 that the suppression of gender in registries may impact the functioning of the state in
 other ways, notably regarding the collection of data or affirmative action based on
 gender. While those concerns will be addressed in the next part of this Chapter, the main
 conclusion here is that the removal of gender from identity documents could be enacted
 given the existing legal basis and would provide immediate relief for non-binary
 individuals – while states slowly move towards the suppression of gender altogether.223
 This is what seems to be aimed for by the Dutch and Belgian Governments which should
 enact the removal of gender markers from identity documents (excl. passports) in the
 (hopefully) near future. This leaves open the question as to how they will organise
 compliance with the I.C.A.O. regulations if they are not changed by then. Most likely, and
 quite counter-productively, it is probable that individuals will have a mention of gender
 on their passport while no longer having it on their national identity cards – like the
 current German framework. Additionally, it could be argued that the I.C.A.O. regulations
 do not prevent states from registering a third gender marker (X) per se. This can explain
221
    See ILGA & ILGA Europe, Malta Declaration (International Intersex Forum) (Dec.                              2013),
    https://nnid.nl/gevorderdenniveau/malta-statement/.
222
    See for the case of Germany, while the suppression of gender markers on identity cards may provide for such
    relief, it is still limited by the medicalized approach to transitions and inter* status that pathologizes trans*,
    non-binary and inter* persons.
223
    It is to be noted that even with a significant soft law basis for this, both the I.C.A.O. and European Union
    regulations/legislation would have to be amended in order to allow for this change which in practice always
    proves to be tedious.


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in part why states may have leaned towards this option rather than investing in the
deconstruction of gender as a legal category altogether. However, this is not a way to
explore in this paper since, as shown previously, this third category does not provide the
complete, effective and dignified recognition and protection needed by non-binary
individuals.



   4.2.     CONSIDERING THE RISKS AND POTENTIAL OBSTACLES TO THE
   SUPPRESSION OF GENDER FROM REGISTRATION SYSTEMS OR IDENTITY
   DOCUMENTS

The registration of gender and, even more, its mention on identity documents is
detrimental to non-binary individuals and to the trans* and inter* communities in
general. It has also been shown in the previous part of this Chapter that the suppression
of gender (on I.D.s) is not an unreachable goal in the Council of Europe. However, it is
necessary to also evaluate the potential negative consequences such a change could
incur. Two main concerns arise on two different levels. First, the legal implications for
the functioning of national systems, particularly regarding the collection of data and
cross-border movements. Second, on a general scope, the risks that abandoning the
registration of gender might imply for the organisation of affirmative action and the
fight against gender-based violations of human rights.



   4.2.1.      LEGAL IMPLICATIONS: DATA COLLECTION AND CROSS‐BORDER
   MOVEMENTS

At the national level, the suppression of gender as a legal category or the suppression of
gender markers on identity documents might be complicated to achieve as states will
likely argue that it would create an obstacle to the protection of rights and the
monitoring of the population. More specifically, the main concerns that have arisen are
the impossibility of collecting gender-disaggregated data in the absence of gender
registration or gender markers, the obstacles it might create for individuals in situations
of cross-border movement to a third country that has not enacted the abolition of
gender registration – or with an airline company similarly bound by the I.C.A.O. – and
more broadly the suppression of gender from travel documents as a violation of the
I.C.A.O. standards.
          Concerning   the   difficulties,   it    would   cause   to   the   collection   of
gender-disaggregated data, the example of race and ethnic data points to the possibility

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 of doing so without gender being a legal category. If statistic offices cannot rely on
 legally registered gender or gender markers on identity documents to obtain data on the
 population’s gender composition, they may do so through other means, mainly
 self-identification through surveys. This renders it possible for all individuals to declare
 their real gender identity without being limited by the categories recognised by the legal
 framework. Moreover, it is to be noted that the collection of gender-disaggregated data
 based on legal gender has traditionally not been fully accurate in itself to the extent that
 it does not account for trans* persons whose legal gender marker is not (yet) in
 accordance with their gender identity and for the condition of intersex persons.224 This
 is even more impactful in states that do not recognise at least a third gender option as it
 implies that all persons identifying outside of the binary are wrongly registered and thus
 the data drawn from registration is falsified in turn.
            Then, concerning cross-border movement, the main concern regards the
 difficulties that would be created for individuals whose legal personality, and
 particularly whose identity documents would no longer present a gender marker when
 they cross-border to a third country where gender registration is mandatory. Because
 the current I.C.A.O. standards require the mention of gender on passports, countries that
 get rid of gender registration would have to display an “X” on every citizen’s passport.
 The “X” in itself could create further complications for individuals in cross-border
 situations, particularly for the obtention of visas and other foreign registration
 documents. Additionally, many electronic software used by airlines to process identity
 documents are not equipped to process non-binary options.225
            An interesting point to be raised is the jurisprudence of the E.Ct.H.R. when it
 comes to protection across borders. In this sense, we can cite the case of Orlandi and
 others v. Italy in which the Court recognised the right to same-sex couples married abroad
 to see their marriage recognised in their home state (Italy).226 Similarly, the Court has
 recognised a right of recognition and registration concerning adoption in a third
 country.227 It is easy to deduce from this jurisprudence that the Court would most likely

224
    See Holzer, supra note 147, at 48.
225
    See id. at 21.
226
    See Orlandi and Others v. Italy, App(s). No(s). 26431/12, 26742/12, 44057/12, 60088/12, (Dec. 14, 2017),
    https://hudoc.echr.coe.int/fre?i=001-139934; see also Handzlik-Rosul and Rosul v. Poland, App. No. 45301/19
    (pending) The Court of Justice of the European Union has recognised a similar right in Case C-673/16, Coman
    and Others v. General Inspectorate for Immigration and Ministry of the Interior, ECLI:EU:C:2018:385 (June 5, 2018).
227
    See Wagner and J.M.W.L. v.           Luxembourg, App.        No.      7624/01, ¶¶ 143-146 (June 18, 2017),
    https://hudoc.echr.coe.int/fre?i=001-81328 (Note that this judgment concerned a single mother adopting
    abroad and seeking recognition for her child in her country of origin, and not a L.G.B.T.Q.I.A.+ applicant.
    However, it establishes a strong precedent regarding the right for recognition of birth and regarding the
    unacceptable burden non-recognition puts on both the parent and the child). See also A.D.-K. and Others v.
    Poland, App. No. 30806/15 (pending) (the Court will approach the same question regarding the recognition
    of child adopted by a same-sex couple in a third country).
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 decide in favour of the individual’s right to see their “X” gender marker recognised
 abroad. However, it is more complicated to assume what the Court would deduce
 regarding the absence of a marker on one’s documents. Under the right to private life, it
 is reasonable to say that the Court would be likely to find a violation if an individual was
 forced to declare a gender when abroad if they were not registered in their state and did
 not wish to do so. Similarly, a difference in treatment based on gender that would incur
 following one’s lack of a registered gender would most likely be considered a violation of
 Article 8 in conjunction with Article 14 of the Convention.



      4.2.2. OVERCOMING THE RISK OF GENDER‐BLIND LAWS

 Another concern when conceptualizing the end of gender registration is the impact it
 would have on the approach to gender discrimination. In this sense, a gender-neutral
 registration could translate into “gender-blind” laws. The term gender blind is defined
 by the Council of Europe as “ignoring/failing to address the gender dimension (as
 opposed to gender-sensitive or gender neutral)”.228 In this context, “gender blind” refers
 to the way legislation could fail to address discrimination on the grounds of gender as a
 result of the absence of registration of gender. Policies or legislation built that way
 would have a detrimental effect on the rights and protection of all gender minorities,
 particularly girls, L.G.B.T.Q.I. and non-binary persons. Indeed, they would risk being
 blind to the differences in opportunities and responsibilities imposed on different
 groups based on their gender identity.229 However, there are multiple ways to define this
 issue and especially, there are different ways of conceptualizing the consequence of the
 end of gender registration on the protection of gender minorities.                          Firstly, it is
 fundamental to remember that gender marker and legal gender personality do not
 equate to gender. In this sense, the suppression of gender from the legal framework does
 not mean its enforced suppression in the social sphere as well. Just because gender would
 no longer be registered by the state does not imply a generalised enforced androgyny.230
           However, the end of gender as a legal category comes with the impossibility of
 the state using registered gender as a way to determine who necessitates increased
 protection from the state – for instance, in fighting gender-based violence. In this
 context, Davis points out that “gender-based violence eradication requires recognition

228
    See Council of Europe, Gender Equality Glossary 35 (2014), https://edoc.coe.int/en/gender-equality/6947-
    gender-equality-glossary.html.
229
    See     generally    European     Institute     for    Gender       Equality:       “gender   blindness”,
    https://eige.europa.eu/thesaurus/terms/1157 (last visited June 13, 2022).
230
    Clarke, supra note 16, at 940-41.


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 and redress for the underlying discrimination that dictates greater freedom for some
 while curtailing them for others”.231 What is fundamental to consider in this context is
 the necessity to maintain a discrimination approach to gender regardless of whether it is
 legally registered or not. When laws are written in a gender-blind manner, there is a
 serious risk that governments will use them to avoid dealing with gender-based violence
 and discrimination. For instance, where assault is prohibited under general law, the state
 might point out that such a provision encompasses gender-based assault when in
 practice such an interpretation fails to take into account the patriarchal, discriminatory
 roots of violence against vulnerable gender groups.232 Similarly, the acknowledgement
 of gender discrimination by the state is fundamental in developing a protective
 framework for minorities. Historically, the recognition of women’s struggle has been
 decisive in qualifying certain acts such as marital rape, as crimes. Consequently, if the
 law ignores gender as a source of discrimination, it implicitly enforces socially
 constructed gender stereotypes that harm all individuals who are not perceived as
 cisgender men.233 As pointed out by Bunch and Davis234 , the deep roots of the patriarchy
 have rendered gender-based violence a seemingly unavoidable occurrence rather than
 being understood as a tool used by those in power to maintain what they define as
 “patriarchal interests, anti-gender rights ideology, and authoritarianism”.235 In doing so,
 any form of gender-based violence or discrimination tends to be defined as a women’s
 rights issue solely, therefore significantly invisibilising L.G.B.T.Q.I.A.+ and gender
 non-conforming persons. It is fundamental here to remember that the development of
 women’s rights had for objective of the achievement of equal rights for women and not
 the creation of new rights tailored to women. All, regardless of their gender identity,
 have a right to safety and protection against gender-based violence and discrimination,
 but women were recognised as a particularly vulnerable group and thus emphasis was
 put on including women textually as the subject of human rights to combat the
 inequality they were faced with due to patriarchal prejudice.                          In this sense, the
 development of women’s rights has never been and should never be a hindrance to the
 development of rights of other gender minorities, and vice-versa.



231
    Davis, supra note 26, at 23.
232
    See C.E.D.A.W., List of Issues and Questions In Relation to the Second Periodic Report of the Syrian Arab
    Republic, §10, U.N. Doc. CEDAW/C/SYR/Q/2 (2013) (questioning the Syrian government on measures taken
    to address domestic violence); Government of Syrian Arab Republic, Replies of the Syrian Arab Republic,
    §§11- 13, U.N. Doc. CEDAW/C/SYR/Q/2/Add.1 (Jan. 22, 2014); Davis, supra note 26, at 24.
233
    See Davis, supra note 26, at 27.
234
    See Charlotte Bunch, Women’s Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486
    (1990). Davis, supra note 26, at 27.
235
    Id.


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 Therefore, the abandonment of gender as a legal category needs to be done in a way that
 would not mean the state’s total blindness to the existence of gender. Thus, it would
 need to be approached as the mere end to the legal classification of individuals by gender
 and hence treating gender in a similar way to race, ethnicity or religion. Then, it would
 not necessarily imply the end of the protection against gender discrimination in the
 same way that the end of racial/ethnic markers did not end the fight against racial and
 ethnic discrimination. To this end, the state would adopt a model that Cruz qualified as
 “non-endorsement and pluralism” that has been applied to religion in many
 countries.236 In doing so, the legal system protects all gender identities without giving
 any particular endorsement to specific identities and thus, without establishing
 boundaries on what is and what is not legally recognised. Such an approach would mean
 the acknowledgment of the existence, and importance, of gender as (often hostile) social
 classification and hence the continuation of the prohibition of gender discrimination
 and all gender-based violence. An interesting development in this sense was the shift in
 feminist discourse from “violence against women” to “gender-based violence”.237 In
 refocusing the discourse from a women-only issue to a more general gender framework,
 the term includes acts of violence against all persons regardless of their gender or of the
 gender of the perpetrator, but for the reason of their real or perceived gender.238 In
 doing such an analysis, it is fundamental that a gender discrimination approach be taken
 in order to expose the contextual causes of gender-biased actions. Omitting the gender
 discrimination present for instance in cases of sexual violence would amount to gender
 blindness and create a dangerous analysis which may reinforce the gender prejudice and
 difference in treatment that has historically been enforced on women, L.G.B.T.Q.I.A.+
 persons and gender non-conforming persons.
           Such an approach applied to all of the legal frameworks at the national and
 Council of Europe level would enable effective protection against gender-based
 discrimination and violence without having a system of registration of gender.
 Moreover, this approach would be beneficial to all as it would allow for the broadening of
 the approach to gender discrimination to include all gender identities and expressions,
 thus including non-binary persons, and also giving more visibility to men and L.G.B.T.Q.
 persons victim of sexual and gender-based violence. Similarly, it would help to diminish
 the stigma on sexual and gender-based violence and gender stereotypes that are
 generally detrimental to the position of women and female-presenting individuals in

236
    See Clarke, supra note 16, at 944.
237
    See generally Davis, supra note 26, at 27.
238
    See generally Julie Goldscheid, Gender Neutrality and the “Violence Against Women” Frame, 5 U. MIA. RACE & SOC.
    JUST. L. REV. 307 (2015).


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 society. Altogether, the end of gender registration, and at the very least ending its
 mention on identity documents, is fundamental to end state control of gender.239 In this
 context, if the state does not need to classify individuals based on their gender, it also
 has no purpose in policing gender identities and expressions and assigning gender labels
 according to hetero-cis-normative and binary norms.




       CONCLUSION

 Concluding this research is a complicated endeavour because of the dynamic and
 ongoing character of the developments regarding the legal recognition and protection of
 non-binary gender identities in the Council of Europe’s legal sphere. However, I believe
 this thesis has demonstrated a strong basis for creating further legal recognition and
 protection in a safe, inclusive and dignified way for all individuals in and outside of the
 gender binary. The quote from the Caribbean Court of Justice with which I introduced
 my reasoning resonates with a much larger project than the limitation of inclusivity of
 legal gender recognition. Indeed, as it was argued all along this research, the current
 avenues chosen by both the European Court of Human Rights and national systems focus
 on including queer identities within the boundaries of what is seen as “natural” and
 “normal”. In this context, it has been argued that the functioning of the Western
 nation-state needs to be challenged in order to redefine normality and nature and open
 the way for the full inclusion of non-binary individuals and queer identities in the social
 and legal spheres.240 In trying to achieve this inclusion, the majority of queer advocacy
 in the legal system has been hyper-focused on the establishment of legal recognition in
 order to include queer gender identities in an extended binary system – through “third”
 or “X” gender marker options. However, this fails to question the inadequacy of the
 system to begin with and the normative framework within which queer identities are
 discussed.241      The E.Ct.H.R. has yet to even mention the term “non-binary” in any
 decision. Furthermore, the position of the Court, in only addressing gender identity
 issues through the right to private life in conjunction with the prohibition of
 discrimination, acts as a limitation on the potential of the Convention rights as the legal
 basis for the development of a more inclusive and protective framework. Nevertheless,

239
    See Clarke, supra note 16, at 942-43.
240
    See Dianne Otto, Resisting the Heteronormative Imaginary of the Nation-state: Rethinking Kinship and Border
    Protection, in QUEERING INTERNATIONAL LAW 236, 241 (Dianne Otto ed., 2017).
241
    See Ratna Kapur, The (Im)possibility of Queering International Human Rights Law, in QUEERING INTERNATIONAL LAW,
    supra note 240, at 131.


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 the Council of Europe remains a community of states which also need to process such a
 significant change within their national systems if there is to be any proactive change on
 the ground. The study of the national systems that have started this reflection and
 developed more inclusive gender registration frameworks has shown a slow but steady
 propagation of the discussion over the foundations of the gender binary and the
 (non-)necessity of gender as a legal category. In this aspect, the “third” or “X” gender
 marker options created in those states constitute a strong commitment to making
 European states more inclusive of non-binary gender identities. However, it has been
 argued in Chapter 3 of this research, that those systems are flawed and, while the intent
 behind them is commendable, they fail to create effective recognition and to provide
 non-binary persons with the dignity, privacy and protection they need. Rather, they
 organise the domestication of non-binary gender identities and create what Lena
 Duggan qualifies as the “new homonormativity”,242 which installs a gender binary
 normativity. In this sense, we can go back to the work of Judith Butler in stating that
 “thinkability” is the fundamental basis for the understanding of one’s lived experience of
 humanity in politics and society, nevertheless, the state has control over the limits of
 that “thinkability”.243 Thus, there is a strong need for the restructuring of the approach
 to gender, which could be achieved by the regularisation of queerness and gender identity
 through the abandonment of gender as a legal category. In suppressing gender as a legal
 category for persons, the state may stop classifying gender expressions, sexual
 orientations, and relationships in terms of gender and more specifically, through the
 lens of the gender binary. In this sense, sexual orientation cannot be defined without
 gender – one’s sexual orientation is defined by which gender they are attracted to. Thus,
 the abandonment of gender does not solely impact the position of non-binary persons
 and non-conforming gender expression but rather would have an impact on the broader
 binary hetero-cis-normative framework of the state. To this end, the fight for inclusion
 of non-binary and queer identities in fundamentally hetero-cis-normative societies
 implies striving towards what Dianne Otto qualifies as “rethinking kinship ties” from
 militaristic and nationalist to queer and inclusive.244 To do so, the inclusion and the
 visibility of queer identities and particularly gender identities outside of the binary is
 fundamental in breaking down traditional kinship and separating it from the Malthusian
 couple245 incentive (heterosexual, monogamous and reproductive) that acts as a


242
    See Lisa Duggan, The New Homonormativity: The Sexual Politics of Neoliberalism, in MATERIALIZING DEMOCRACY 175,
    190 (Russ Castronovo et al. eds., 2002).
243
    JUDITH BUTLER, UNDOING GENDER 106 (2004).
244
    See Otto, supra note 240, at 251.
245
    See generally MICHEL FOUCAULT, THE HISTORY OF SEXUALITY (Robert Hurley trans., 1978).


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 foundation for Western states.246               In putting forward the possibility of abandoning
 gender as a legal category, the last part of this research, seeks to push the state towards
 its duty as a protector of all without distinctions and the acceptance of all forms of lived
 experiences of gender.                   Furthermore, this research, and queer approaches to
 international law in general, aim to open space on the front of the stage for the
 questioning of the hetero-cis-normative framework that underpins Western societies. In
 the words of Dianne Otto: “[J]ust as feminist curiosity exposed international law’s
 gendered framework, and postcolonial curiosity its European underpinnings, queer
 curiosity makes visible its (hetero)sexual ordering that is so taken for granted that it is
 considered ‘natural”’.247 If “third” or “X” gender markers and other developments may
 have provided for temporary relief to the exclusion and harm suffered by non-binary
 persons, only the eradication of this bias will ensure complete equality for and
 integration of queer gender identities, orientations and expressions in the legal and
 social frameworks. To do so, human rights law has offered legal avenues, through Article
 8 E.C.H.R., and promises to keep moving forward, even slowly, to reach the full equality
 and inclusion of all gender identities within the Council of Europe. However, in light of
 the recent decisions of the E.Ct.H.R. in the cases of Y v. France and M.A. v. Germany, it
 appears that the Court has taken a backwards approach in cases of sexual orientation,
 gender identity, gender expression and sex characteristics [hereinafter S.O.G.I.E.S.C.]
 matters. While it could have used such cases, particularly Y v. France, to develop the
 obligations of states to protect non-binary and intersex person’s rights to identity, it has
 sided with states in leaving a large margin of appreciation and retracting in the
 “European consensus” argument to avoid having to legislate on matters of S.O.G.I.E.S.C.
 identities. This is a regrettable take that points a still long way to the creation of
 effective recognition and protection of non-binary gender identities in the Council of
 Europe. Nevertheless, non-binary persons will continue to exist on European soil, argue
 for the recognition of their identity, and hopefully enact positive change shortly.




          ANNEX 1. RESULTS OF THE QUESTIONNAIRE CARRIED OUT IN THE
          SCOPE OF THIS STUDY

 This research was carried out between October 2022 and June 2022 through an online
 questionnaire I created and disseminated through queer spaces – hence the
246
      See Otto, supra note 240, at 241.
247
      Otto, supra note 18, at 2.


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overrepresentation of non-binary persons. It was first created as a way to grasp how the
non-binary community had, or would, receive the possibility of having an “X” gender
marker on their identity documents.




N.B.: The questionnaire contained an open box for “[a]dditional views on the legal
recognition of non-binary identities” of which the result will remain hidden for reasons
of anonymity.    The views expressed in this part were taken into consideration in
formulating an answer to the question at hand in this thesis.

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    ANNEX 2. NATIONAL LEGISLATION QUOTES

   • THE NETHERLANDS Rechtbank Amsterdam [Rb] [Amsterdam District Court], 21 Juli
        2021, Case C/13/669890 / FA RK 19-4520, ECLI:NL:RBAMS:2021:3732 (Neth.).

           4.3. De rechtbank is van oordeel dat het onderhavige verzoek tot
           wijziging van de geslachtsaanduiding op dezelfde wijze dient te
           worden benaderd als die welke is omschreven in de artikelen 1:28a-c
           BW, voor mensen van zestien jaar en ouder die de - door een
           deskundige getoetste en onderschreven - overtuiging hebben tot “het
           andere geslacht” te behoren.      Deze artikelen voorzien niet in de
           mogelijkheid om te kiezen voor een non-binaire geslachtsaanduiding,
           waarmee naar het oordeel van de rechtbank in deze artikelen een
           ongerechtvaardigd onderscheid wordt gemaakt tussen personen die
           de overtuiging hebben tot het andere geslacht te behoren en personen
           die de overtuiging hebben buiten de exclusief mannelijk of
           vrouwelijke geslachtsaanduiding te vallen (non-binair).

   • GERMANY Bundesverfassungsgericht (BVerfG) [Federal Constitutional Court], Oct.
        10, 2017, 1 BvR 2019/16, https://www.bundesverfassungsgericht.de/Share
        dDocs/Entscheidungen/DE/2017/10/rs20171010_1bvr201916.html (Ger.).

           36. § 21 Abs. 1 Nr. 3 in Verbindung mit § 22 Abs. 3 PStG verstößt
           gegen das allgemeine Persönlichkeitsrecht (Art. 2 Abs. 1 i.V.m. Art. 1
           Abs. 1 GG) in seiner Ausprägung als Schutz der geschlechtlichen
           Identität.      Das allgemeine Persönlichkeitsrecht schützt die
           geschlechtliche Identität auch jener Personen, die weder dem
           männlichen noch dem weiblichen Geschlecht zuzuordnen sind (1). In
           deren    Grundrecht     wird    eingegriffen,     weil   das    geltende
           Personenstandsrecht dazu zwingt, das Geschlecht zu registrieren,
           aber keinen anderen Geschlechtseintrag als weiblich oder männlich
           zulässt (2). Der Grundrechtseingriff ist nicht gerechtfertigt (3).


           [§ 21(1) no. 3 in conjunction with § 22(3) PStG violates the general
           right of personality (Art. 2(1) in conjunction with Art. 1(1) GG) in its
           manifestation as the protection of one’s gender identity. The general
           right of personality also protects the gender identity of persons who
           can be assigned neither the male nor the female sex (see 1 below).

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      There is an interference with their fundamental right because
      current civil status law requires that sex be registered, but does not
      allow a gender entry other than female or male (see 2 below). This
      interference with fundamental rights is not justified (see 3 below).]

 • ICELAND Government of Iceland.       Act on Gender Autonomy No.            80/2019 as
  amended by Act No. 159/2019, No. 152/2020 and No. 154/2020. (2020, May 8).
  Retrieved May 26, 2022, from https://www.government.is/publications/le
  gislation/lex/2020/05/08/Act-on-Gender-Autonomy/ (Iceland).

      Article 6 - Neutral Gender Registration.
      Neutral gender registration is permitted. Public and private bodies
      that register gender shall provide for the possibility of registering
      gender as neutral, inter alia in identity documents, forms and
      databases, and provide for a clear denotation of such registration. In
      passports, neutral gender registration shall always be denoted with
      the letter X.

 • BELGIUM Cour Constitutionnelle [CC] [Constitutional Court], decision no. 99/2019,
  June 19, 2019. https://www.const-court.be/fr/ (Belg.).

      B.6.1. Le moyen unique, en sa seconde branche, est pris de la violation
      des articles 10, 11 et 22 de la Constitution, lus en combinaison avec
      l’article 8 de la Convention européenne des droits de l’homme, par les
      dispositions attaquées, en ce que celles-ci prévoient un système 31
      binaire qui contraint les personnes dont l’identité de genre est non
      binaire à accepter, dans leur acte de naissance, un enregistrement du
      sexe qui ne correspond pas à leur identité de genre, alors que les
      personnes dont l’identité de genre est binaire mais ne correspond pas
      au sexe enregistré dans leur acte de naissance peuvent faire modifier
      cet enregistrement.




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