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Critique Essay Law/Legal Nonfiction Social Sciences

Gender recognition and the rights to health and health care: Applying the principle of self-determination to transgender people

By Maciej Szydlowski, 2016

Transgender people worldwide are subject to discrimination and violence. They are either being denied legal rights and thus face marginalization and increased vulnerability or their recognition is subject to cumbersome legal and medical preconditions that often infringe on the rights to self-determination, privacy, family life, and physical integrity. This article will situate legal gender recognition in the human rights domain as key to the enjoyment of the right to self-determination and explore its role in fulfilling the rights to health and health care. Using examples from European Union members’ legal frameworks, the author will argue that any mechanism for legal recognition of transgender identities should not draw on a pathological view of gender variance. Instead, lawmakers should acknowledge the existence of gender diversity within societies and respect the right to self-determination of transgender people, as enshrined in the Yogyakarta Principles (2007), by way of allowing them to self-declare their gender identity without the imposition of any discriminatory preconditions. Free of these requirements, gender recognition will not only assert the right to self-determination but also help transgender people achieve that state of physical, mental, and social well-being necessary for their enjoyment of the highest attainable standard of health. KEYWORDS: Gender recognition, right to health, self-determination, transgender

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