Last week, a public debate erupted again over the definition of gender requested by the Supreme Court of Cassation (SCC). Political forces tried to use the occasion before the election, but when we talk about real human destinies, we should examine the issue through the experience of experts and professionals.
Some of the questions asked by the Civil Chamber of the Supreme Court of Cassation to the Constitutional Court (CC) are: What is the explanation of the term "gender" adopted by the Constitution, and does it have an independent psychological or social expression other than biological? Does the right to privacy, as defined by the EU Charter of Fundamental Rights and the European Convention on Human Rights, take precedence over this explanation? The reason for these issues is contradictory court cases’ decisions filed by trans people.
Single Step Foundation, as an organization that defends the right to a dignified life for every LGBTI person, believes that in the current election situation, this debate was immediately turned into a political conversation, which is unacceptable. This carries a huge risk for the public pressure to lead to a purely legal definition of a complex issue. We urge the Supreme Court of Cassation to include the recommendations of experts in the field of medicine, psychotherapy, psychiatry, etc. and hear the voice of the trance community itself.
In 2018, the Constitutional Court practically erased the medical truth about trans people and their basic right to self-determination, by denying the existence of psychological gender – in our national law. Then the Constitutional Court refused to accept the very existence of trans people in Bulgaria and spread a practice that was detrimental to their lives. Through an artificial, abstract and detached analysis of what the Bulgarian birth certificates mean, the judges lightly erased an entire minority community in the country.
The 2018 a constitutional decision was pronounced without commenting on the gender recognition law practice in the last 30 years. Moreover, the decision was made without any comment on whether the already closed cases violated someone else's rights, negatively affected third parties, threatened a public interest, etc.
Balance between personal life and public interest
Currently, in the forthcoming new constitutional case, the greatest risk is for this one-sided and superficial approach to be repeated. The submitters of the request suggest to the Constitutional Court the use of an interdisciplinary approach for defining the term "gender", which includes knowledge of international human rights law, knowledge of medicine - psychiatry, endocrinology and others, and above all, a serious deepening of the principle of proportionality. This means that the definition of "gender" cannot be "invented" in isolation, but must go through the answer to the question:
What is the fair balance between the individual right to respect for private life of an individual citizen and the protection of the public interest by identifying if it is endangered at all?
The information that gender is changed through just one declaration is false. Gender is changed with the permission of a court, based on evidence of sexual dysphoria and after a mandatory interview with a psychiatrist, and in most cases, people who change their gender after work with psychologists, psychotherapists and other medical professionals.
Denying the phenomenon of transsexuality is an opposition to science, including medicine. This opposition in our country hinders the provision of quality health services to trans people who simply need medical care to synchronize the biological with their psychological sex.
The discrepancy between the biological sex on the one hand and the consciousness of gender and gender role on the other hand is in no way considered as a disorder of consciousness or personality. This is also the case in Bulgarian medical practice, no matter how narrow it is. Scientifically based facts show that the inner feeling of a sex other than the biological one is irreversible. It is important to note that in the International Classification of Diseases, being transgender is excluded from the section "Mental and behavioral disorders".
Living people, not just a legal case
Beyond all medical and legal facts, we must not forget that behind the definition of "trans person" there is a living person with the right to a dignified and quality life. The contradiction between gender determined at birth and the gender identity of a trans person is one of the main sources of real and painfully expressed, to varying degrees, intolerance to the physical body (sexual dysphoria). This feeling of intolerance could lead to a worsened mental state and even suicidal attitudes. Factors that further and mainly harm the trans person are related to non-acceptance of gender identity by their loved ones, from the environment, from the formation of prejudices and stereotypes to different, from stigmatizing and pathological attitudes of society, from systemic messages from "experts" and politicians who reinforce hate speech. These poisonous elements of the environment in which trans people live can contribute to their deep suffering, depression, risky behaviors, and even suicide. With the elimination of the possibility for trans people to go through this vital process towards the integration of gender identity and legal existence, lives are erased. A fact that all of us as professionals who work with trans people in Bulgaria, see and experience in our practice every day.
Identity and human rights
Legal recognition of gender in court is not just a personal whim, but part of the transition and a mandatory part of the integration of the trans person into society with their true identity. Without a lawsuit and a change in personal data, the transition is not complete. The identity document is the "entrance", the "pass" in society, and the isolation from society causes suffering – something that everyone has been convinced of in the last year.
In conclusion, we want to state that gender self-determination is a fundamental human right and a medical fact – the rights of trans people to determine their gender do not take away anyone else's right, whatever it may be. We believe that now is the time for the Constitutional Court to respect the right to a dignified life for all trans people in Bulgaria, by including in the process of defining gender the opinions of professionals who work daily with this group and know closely the problems they face and solutions they need.