Gender identity is one of the most fundamental aspects of life. The sex of a person is usually assigned at birth and becomes a social and legal fact from there on. However, a relatively small number of people experience problems with being a member of the sex recorded at birth. This can also be so for intersex persons whose bodies incorporate both or certain aspects of both male and female physiology, and at times their genital anatomy. For others, problems arise because their innate perception of themselves is not in conformity with the sex assigned to them at birth. These persons are referred to as ‘transgender’ or ‘transsexual’ persons, and the current paper relates to this group of people.

The human rights situation of transgender persons has long been ignored and neglected, although the problems they face are serious and often specific to this group alone. Transgender people experience a high degree of discrimination, intolerance and outright violence. Their basic human rights are violated, including the right to life, the right to physical integrity and the right to health.

Although the number of transgender persons is small, it should be pointed out that the transgender community is very diverse. It includes pre-operative and post-operative transsexual persons, but also persons who do not choose to undergo or do not have access to operations. They may identify as female-to-male (FTM) or male-to-female (MTF) transgender persons, and may or may not have undergone surgery or hormonal therapy. The community also includes cross-dressers, transvestites and other people who do not fit the narrow categories of ‘male’ or ‘female’. Many legal frameworks only seem to refer to transsexual persons, leaving out a decisive part of the community.

In order to understand the concept of gender identity, it is important to distinguish between the notions of ‘sex’ and ‘gender’. While ‘sex’ primarily refers to the biological difference between women and men, ‘gender’ also includes the social aspect of the difference between genders in addition to the biological element.

The notion of ‘gender identity’ offers the opportunity to understand that the sex assigned to an infant at birth might not correspond with the innate gender identity the child develops when he or she grows up. It refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, and includes the personal sense of the body and other expressions of gender (i.e. ‘gender expression’) such as dress, speech and mannerisms.¹ Most people legally defined as man or woman will correspondingly have a male or female gender identity. Transgender persons, however, do not develop that corresponding gender identity and may wish to change their legal, social, and physical status – or parts thereof - to correspond with their gender identity. Modification of bodily appearance or function by dress, medical, surgical or other means is often part of the personal experience of gender by transgender people.

Both the notion of gender identity and the forms of gender expression used in everyday life are important elements for understanding the human rights problems faced by transgender persons. Some legal frameworks in Council of Europe member states, unfortunately, categorise gender identity under ‘sexual orientation’, which is not accurate since gender identity and sexual orientation are two different concepts. Sexual orientation should be understood as each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender (heterosexuality, homosexuality and bisexuality).² In addition, many international and national medical classifications impose the diagnosis of mental disorder on transgender persons. Such a diagnosis may become an obstacle to the full enjoyment of human rights by transgender people especially when it is applied in a way to restrict the legal capacity or choice for medical treatment.