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Announcement: Trans people should also have the right to a fair procedure!

Székely László

We demand a fair procedure!
The Commissioner for Fundamental Rights stands up for the rights of trans people! - Transvanilla Association urges action.

Transvanilla Transgender Association welcomes the Commissioner for Fundamental Rights’ new report about the shortcomings of the legislation on legal gender recognition. "As legal gender recognition procedures are suspended again since May 2018, we hope the report of the Commissioner for Fundamental Rights will draw the attention of the legislators to the seriousness of the situation so that transgender people do not have to wait unreasonably long for the restart of evaluation of requests.” - said Barnabás Hidasi, president of the Association.

The individual complainant whose case was investigated by the Commissioner turned to Transvanilla for legal advice in 2016. Authorities failed to inform her in the first six months after her request for legal gender recognition had been filed, up until the Commissioner himself also inquired about the specific case.

As it turned out, the obstacle to evaluating the request was that her documents containing the experts’ opinions had been created six years earlier and one of them had not been authenticated by a stamp. Neither in the information guide on the webpage of the Government Office, and, to our knowledge, nor in personal communication exchanges with authorities had these requirements been listed, furthermore, the authorities had never referred to such criteria before. The reason why the aforementioned requirements are distressing is that neither the legislation nor the official information available does not contain any statement regarding them. Moreover, the problem complained of is a simple, formal criteria, so it is unclear why it took six months to notify the applicant about it.

Before the investigation of this specific case happened, it is worth highlighting that following a comprehensive study in September 2016, AJB-883/2016., the Commissioner for Fundamental Rights already stated that the situation was worrying. There is no legislation on legal gender recognition and the exact conditions of it; the basic guarantees of a fair trial are not given, such as deadlines, decision-making powers and remedies as well.

Following the publication of the previous report, legal gender recognition procedures were suspended from November 2016. As a result of this suspension in June 2017, our association yet again turned to the Commissioner and informed him about the existing issues: suspension of procedures, incomplete information for the applicants, unpredictability and uncertainty.

The 429/2017. (XII.20.) Government Decree in December 2017 meant the settlement of the proceedings for a short time. However, it was deeply concerning that legal gender was still clearly a medical issue - psychiatric and psychologist expert opinions remained as requirements - and not based on self-determination.

In practice, the Government Office continued to expect professional opinions from EMMI (Ministry of Human Capacities), while the Health Secretary believes that a psychiatrist’s and a clinical psychologist’s opinions themselves can be considered as supportive medical opinions, therefore there is no need for further comments from EMMI. In his view, in line with the position of the Commissioner of Fundamental Rights and our Association, legal gender recognition is a legal issue, and the relevant procedural rule does not fall within the competence of the EMMI.

The Commissioner for Fundamental Rights notes in his current report that the complete lack of legal regulations and the unpredictability of requirements violate the requirement of legal certainty; the lack of information given about the practice causes a serious damage to the right to fair procedure and the right to legal remedy and is likely to cause serious harm to human dignity and the right to self-determination. He asks the Minister of Prime Minister’s Office to consider the development of legislation which ensures legal gender recognition for trans people in cooperation with other stakeholders involved. This legislation should ensure trans persons can choose their name and gender apart from gender affirmation medical interventions. And as long as this does not happen, take action to ensure that the applications are processed and requirements are made publicly available.

"In our opinion, transgender people have the right to a fair trial, just like anyone else, and arbitrary behavior of law enforcers should not prevent their gender identity to be recognized." - added Barnabas Hidasi.

Read the full report in Hungarian here.

Transvanilla Transgender Association
24 October 2018

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