Stereotyped recognition : trans identities and conceptions of gender in the European Court of Human Rights’ jurisprudence

Abstract

In the past decades, international instruments and human rights courts have set out to eliminate gender stereotyping. The topic of elimination of gender stereotypes has been particularly present in the area of gender equality. As trans people are increasingly gaining recognition, it must be ensured that legal gender recognition does not occur through reliance on gender stereotypes, which bears the risk of undermining the goal of eliminating gender stereotypes. However, gender stereotypes often appear in case-law related to the gender identity of trans persons. This thesis aims to compare the European Court of Human Rights’ (ECtHR) approach to gender stereotypes in the context of gender equality and gender identity cases, to analyse whether it avoids relying on gender stereotypes and condemns such reliance when it occurs. The thesis further analyses whether the ECtHR should be consistent in its approach to gender stereotypes in gender equality and gender identity cases, and how it could achieve such a goal. This analysis reveals that both gender equality and gender identity cases contain a number of gender stereotypes despite the ECtHR’s commitment to their elimination, with the gender stereotypes relied on in gender identity cases being disproportionately left unaddressed. Where gender stereotypes may aid in the recognition of certain trans persons, and hinder the recognition of others, this thesis questions the potential value of gender stereotypes and the risks associated with judicial reliance on them.