From sterilisation to assisted reproduction : policy analysis of Denmark's 2014 law on legal gender change for trans people

University of Amsterdam

Graduate School of Social Sciences

August 2015

Master's thesis in Sociology, track Gender, Sexuality and Society:

From sterilisation to assisted reproduction

Policy analysis of Denmark's 2014 law on legal gender change for

trans people

Sigrun Inga Gardarsdottir

Student no. 10862048

Supervisors:

Dr. C. M. Roggeband

Dr. M. P. C. Janssen

Acknowledgements

Writing a thesis demands a lot of you, both mentally, emotionally, time wise and in terms of

academic growth. A piece like this is only achievable with the help of the good people who've

always got your back and are ready to give you support when you need it the most.

For academic support, I want to thank my first supervisor, Conny Roggeband. She truly

guided me through this challenge and, equally importantly, introduced me to the world of policy

analysis which has given me many new insights. I also want to thank Marie-Louise Janssen, my

second supervisor for encouraging me and for all her inspiring lectures during my year at the

University of Amsterdam.

My Amsterdam year would not have been the same if I had not been fortunate enough to

study with some of the biggest geniuses from around the world. The gender studies group was a

wonderful mix of people with different views, ideas and dreams and made the master's such an

enriching experience in so many different ways. I'm lucky to know that many of you are going to

remain my friends for the rest of my life. You truly made this winter into the amazing time it was!

I wouldn't be were I am today if it wasn't for my loving parents who never stop encouraging

me. Also, being both a legal scholar and a fluent speaker of the Danish language, mum gave me

invaluable help with digging into Danish law texts. To a non-legal person, such texts can sometimes

feel like a wild jungle.

My partner, Tom, has kept me sane through all of this. He not only ran me countless hot

baths and poured me glasses of apfelwein in moments of need (sometimes both at the same time, in

times of desperate need) but was also always ready to discuss various aspects of transgender

identity and rights. He is and continues to be my rock and my inspiration.

Last but not least, thank you to my incredible brother for being who he is and for

introducing me to the world of trans.

This thesis is for all those who know that trans issues matter.

Foreword

This thesis originates in both my previous work on trans issues, as an undergraduate in Iceland, and

the great fusion of ideas and theories that I have encountered through studying gender in

Amsterdam.

Going from an undergraduate degree in psychology to a sociology master's and finally

dipping a toe into policy analysis in this master's research has, in many ways, been a roller-coaster.

In this thesis I used methods that were completely new to me and it included a lot of learning

through trial and error. Also, my choice of topic meant that I was forced to brush up on my Danish!

Several times I have found it challenging to sit and analyse policy texts, expressing views that run

completely counter to my own but that, nonetheless, in the name of academic impartiality, had to be

dealt with in the same way as any other text.

All in all, the process of writing this thesis has been both exhilarating, exhausting, inspiring

and challenging but most of all extremely interesting. I hope that the final product passes this

interest on to the reader.

Table of Contents

Acknowledgements...3

Foreword...4

Table of contents...5

Summary...7

Introduction...8

Thesis question, sub questions and relevance...11

Background to Denmark's legal changes...13

The legal changes...13

The legal process...14

Table 1. Time line of the Danish legal changes

...14

Additional actors...15

Table 2. Descriptions of Danish organisations that reviewed the two law proposals

...16

A note on the Danish system for social security...17

A note on the concepts of sterilisation and castration...18

Theoretical framework...19

Theories regarding the importance of studying policies and political discourses...19

Theories that address the special nature of policies on intimate matters...21

Literature addressing forced sterilisation of trans people, medical ethics and individual rights to reproduction... 26

Methods...28

Table 3. Documents analysed for the CPR law proposal

...30

Table 4. Documents analysed for the Sundhed law proposal

...30

Table 5. Information about interviewees

...32

Results...33

Frame 1...33 Frame 2...34 Frame 3...35 Frame 4...36 Frame 5...37 Frame 6...38 Frame 7...39 Frame 8...39 Frame 9...40 Frame 10...41 Frame 11...41 Frame 12...42 Frame 13...43 Frame 14...44 Frame 15...44 Frame 16...45 Frame 17...46 Frame 18...47 Frame 19...48

Table 6. Identified frames

...49

Discussion...51

Relations between trans people and medical authorities...51

Deciding for yourself...52

5

Deciding over your own body...52

Autonomy...53

Use of the concept of “rights”...53

Maintaining norms and roles...55

Definitions of sex and access to assisted reproduction...56

Unclear aspects...56

Law proposal welcoming trans fertility...57

Society vs. individual...58 Intimate citizenship...58 Self-governance

...59

Regulated freedom

...59

Becoming citizens

...59

Respecting difference

...60

Conclusions...61

Bibliography...64

Appendix 1...68

6

Summary

This thesis addresses policies that force trans people to undergo sterilisation as a prerequisite for

legal gender change. Policies that demand this of trans people are in in action in many European

countries today and represent one of the largest hindrances to trans people's fertility and options for

starting a family. This thesis focuses upon one European country that recently changed their policies

in this area. In 2014, Denmark joined countries such as Sweden and The Netherlands in changing

laws on legal gender change and doing away with the forced sterilisation requirement. With its legal

changes, Denmark became the first European country to completely separate legal gender change

from medical authorities.

This master's research made use of Critical Frame Analysis to analyse the official legal

documents of Denmark's legal change. This method made it possible to map out the different

arguments, both for and against the changes, and to pinpoint the actors that used those arguments in

the political debate. The analysis also paid special attention to silences and obscurities in the debate.

In addition to the policy analysis, interviews were conducted with spokespersons from Danish trans

advocacy organisations, to gain an understanding of how the revision of the law came about and to

what extent trans people and their organisations had a voice in the political debate.

The results reveal several policy frames that show how the issue at hand, legal gender

change for trans people, was understood and organised by actors in the political debate. For

example, some frames explain the government's wish to help trans people live the life they want,

whilst others show opposition to the legal changes, e.g. that individuals who have legally

transitioned from woman to man should not have access to artificial insemination. The identified

frames also highlight silences in the political debate, such as a lack of awareness of different

fertility options that trans people could benefit from and minimal references to internationally

agreed upon human rights. Those results are further discussed in relation to the concept of intimate

citizenship.

The findings of this master's research show how one country went about abolishing forced

sterilisation of trans people and provides an understanding of both successful, as well as

problematic arguments used in relation to that change. The resulting insights are relevant to other

countries looking towards making similar legal changes and for additional measures to secure trans

people rights and access to both legal gender change and fertility options.

Introduction

In April 2014, Transgender Europe (TGEU) published data on policies relating to transgender

issues. More specifically, the organisation had gathered data on policies, in countries across Europe,

that require transgender individuals to undergo sterilisation in order to gain legal recognition of

their gender. Their report revealed the names of 21 European countries that demand this of trans

people (“Trans Rights Europe - Map & Index 2014,” n.d.). Those shocking findings raise many

questions; what is the idea behind such policies? What does this mean for trans people's rights, e.g.

in relation to reproduction? Is work being done to change those policies?

Many countries in Europe do not require trans individuals to undergo sterilisation. Broadly

speaking, some countries require sterilisation whilst others do not, and some countries do no posses

any policy directly related to gender identity, in other words, legal gender recognition is not

available for trans people (“Trans Rights Europe - Map & Index 2014,” n.d.). The differences in

policy on recognition of gender identity between European countries are considerable. Despite EU

nations sharing a commitment to the same agreements, such as the European Convention on Human

Rights, it is alarming to discover that a significant number utilise sterilisation as part of their policy

towards trans people.

Compulsory sterilisation is more often associated with the first half of the twentieth century,

where eugenics programs sought to remove the reproductive capabilities of individuals considered

to be defective or inferior (Lombardo, 1996). Many would consider this to be an abhorrent

malpractice and a darker moment in our history. Despite being a clear violation of human rights

conventions (“WHO | Eliminating forced, coercive and otherwise involuntary sterilization,” n.d.),

many may be surprised to learn that forced sterilisation still remains an issue in the

twenty-first-century. For such a substantial and invasive bodily intervention, one would expect to see clear

reasoning for why sterilisation is considered necessary for trans people. The arguments and

reasoning, however, are not easy to find. It therefore remains unclear why sterilisation is still

practised and remains a policy for the legal recognition of gender identity in so many European

countries.

Why should the topic of sterilisation policies be critically engaged? Aside from the historical

precedent that we should have learned from, sterilisation has a very real impact on trans people

today, an issue that urgently needs addressing. Not only does it have a profound and often

irreversible impact on the bodies and lives of trans people seeking legal recognition, but also those

close to them, e.g. their partners. When seeking to understand the reasoning for sterilisation, as

8

being considered necessary for the legal recognition of gender identity (and thus subjected to trans

people), we are not just addressing policy, but also unravelling the deeper societal beliefs that they

reflect about gender, reproduction and family.

The time is ripe and appropriate to open the discussion on sterilisation policies and press for

debate. Several countries have taken the step to change their law and international organisations

such as Transgender Europe and ILGA-Europe are applying pressure to other countries to do the

same. Furthermore, new and increasingly sophisticated reproductive technologies are challenging

the meaning of fertility and who can and cannot have biological children, thereby creating new

family forms and challenging the concepts of “mother” and “father”. The growth of in-vitro

fertilisation, as well as recent developments in fertility technologies (freezing, storing and fertilising

un-fertilised eggs), makes it increasingly more possible to produce our own biological offspring.

Only last year a successful pregnancy was achieved using an implant womb (Gallagher, 2014), and

this year the United Kingdom has passed a bill to permit three-person parenting (Gallagher, 2015).

In the context of aiding and assisting couples to procure their own biological children, where nature

alone would otherwise have denied them, it is difficult to understand why trans individuals capable

of bearing their own children should be denied their opportunity by being forced into sterilisation.

With such recent developments in fertility treatments, technologies and legislation, it is important

now more than ever to assess and evaluate the arguments and impact of sterilisation of trans people

in relation to their (denied) parenthood as well as their individual rights.

Several countries are in the process or have recently updated their laws regarding

sterilisation of trans people. This includes Sweden, Denmark, the Netherlands and now, as recently

as last April, Malta. Those countries have all taken the step to abolish sterilisation as a prerequisite

for the legal recognition of gender identity (“Denmark Ends Forced Sterilization Of Transgender

People,” n.d., “Malta Adopts Ground-breaking Trans and Intersex Law - TGEU Press Release,”

n.d.; ILGA-Europe, 2014; Reason 24/7, 2013). But the development has been slow, as Richard

Köhler, Senior Policy Officer and Deputy Executive Director of TGEU, explains. Following the

2009 publishing of an issue paper on human rights and gender identity by the Human Rights

Commissioner, TGEU was hopeful that national governments would realize the gravity of

sterilisation of trans people and quickly change their policies. Nevertheless, in 2015, a staggering

number of countries have still not got rid of forced sterilisation. What has not helped this situation is

that the European countries that are usually “the good students in the class”, namely countries such

as Sweden, Norway and Denmark, have until very recently been “dragging their heels” (Köhler,

2015).

Apart from Malta, who as recently as April 2015 changed their national policies on legal

9

gender recognition, Denmark is the European country that most recently undertook a revision of

their policy for trans people. In 2014, Folketinget, Denmark's parliament decided to abandon

sterilization as a prerequisite for legal recognition of gender identity. Shortly before this, Sweden

had also made a similar policy change. Being looked up to as frontrunners when it comes to human

rights, the Scandinavian countries had been criticised for ignoring the problem of forced

sterilisation. Media coverage on the policy changes included normative statements and highlighted

that it was surprising that countries, known for their progressive and liberal attitudes towards

sexuality and LGBTQ rights, had sustained a policy on sterilization for so long (“Denmark Ends

Forced Sterilization Of Transgender People,” n.d.; Pasulka, n.d.; Reason 24/7, 2013). Although

information exists in the form of media discussion, factual data and statistics, no systematic study

has been undertaken of the debates and political discussions that took place prior to the policy

changes in those countries.

Forced sterilisation really is the elephant in the room when it comes to both trans people's

rights and their reproductive options, and although improvements are being made in some national

policies, it appears to be an issue that is often swept under the carpet. Forced sterilisation has

obvious consequences for the future possibilities of family life and seems to constitute the biggest

hindrance, still legally intact, for trans people's fertility options. Yet, as explained above, the

reasoning, arguments and justification remain unclear. With Europe slowly commencing to rid itself

of forced sterilisation requirements for trans people and countries within the continent looking to

each other for ways to tackle the issue, it is vital to understand how countries who have managed to

abolish sterilisation went about it. It is important to explain exactly what kind of legal changes were

made and how the countries argued for these changes. Moreover, understanding what arguments

were made against the changes, whether they were e.g. based on normative views about gender,

reproduction and family, can help guide other countries on their road to assuring the rights of trans

people.

In order to answer those questions and start unpacking the policy issue of forced sterilisation

of trans people, this thesis will critically analyse the political debate and legal changes that

Denmark undertook in 2014. With its changes, Denmark not only abolished sterilisation but also

became the first European country to to completely separate legal gender change from medical

authorities. Legal gender change became a purely legal procedure, requiring neither a diagnosis,

sterilisation or any other medical intervention. In this way, it was a significant modification and a

great improvement for trans people. As a consequence of the law enabling legal gender change in

this way, changes were also made to the Danish Health Act and the law on assisted reproduction.

Those changes have implications for trans people's access to fertility treatments.

Conducting an in-depth analysis of one country's legal changes allows for a clear

understanding of how the step to abolish forced sterilisation for trans people was made. More

specifically the analysis of the Danish policy change will allow:

•

identification of arguments for and against removing forced sterilization of trans people

•

determining the different voices present in the discourses

•

an understanding of to what extent trans people and/or organisations advocating for trans

people had a voice in the discourses

•

seeing if references were made to similar policy changes in other countries

•

identification of any silences in the discourse (i.e. what voices or arguments were not heard)

Thesis question, sub questions and relevance

Through conducting this analysis, my aim is also to explain what the implications of the Danish

legal changes are for trans people's access to fertility treatments in Denmark. Consequently, my

thesis question is the following:

How was the policy issue of legal gender recognition represented in the Danish

political discourse, preceding the country's new law on legal gender change, and what

were the implications for trans people's reproductive options?

A set of sub questions are also raised:

-Why was sterilization a prerequisite in the first place?

-Exactly what changes were made and why?

-What arguments (both for and against sterilisation) were presented in the policy discourse?

-Who made those arguments?

-What argument/voices were not considered?

The relevance and importance of this research lies mainly in its aim to clarify the arguments

for and against abolishing sterilization as a prerequisite for legal recognition of gender identity.

Mapping out the specifics of the political debate in Denmark allows us to understand what

arguments were successful in bringing about the kind of legal changes that were made in Denmark.

Furthermore, it alerts us to views that were presented in opposition to those changes. The research,

therefore, has wide implications for policy makers in other countries who are in the process of

changing their laws or seek to do so and who are looking to Denmark as a model and precedent. In

11

this way, the strength of this research lies both in its practical value and potential for application, as

well as in offering insight into what norms and views are presented against laws on legal gender

change for trans people and access to fertility options for this same group.

In the next chapter I will provide background information, necessary for the understanding

of the Danish case. Thereafter, a chapter is dedicated to relevant theories and the main concepts that

were utilised for the purpose of this research. A chapter on methodology follows, leading into a

chapter on the research findings. The main findings are then discussed and answers to the research

question and sub question presented. Finally, findings are summarised in the conclusion chapter

which also highlights the relevance of the findings and suggests further research areas.

Background to Denmark's legal changes

This chapter will provide a background to the Danish case. It will start by outlining the legal change

itself, explaining what laws where changed and how and what the former legal situation of gender

change in Denmark was. This outline will be followed by a time line of the relevant legal events.

The chapter will then provide an insight into the political climate in Denmark at the time of the

change, listing the political parties in government and those in opposition. A short introduction of

other relevant actors, namely organisations that provided reviews of the law proposals and trans

organisations in Denmark will also be given. Finally, the chapter includes a note on castration and

sterilisation and the differences in definitions between those two concepts.

The legal changes

Sterilisation as a prerequisite for legal gender identity recognition was removed from Danish

law with two separate but closely related amendments to the law. The main change was an

amendment of the Central Person Registry (CPR) law. The law proposal presented a simpler and

easier process for legal gender change. It suggested allowing individuals to apply for a new social

security number via the internet, formally stating that this wish was based on a feeling of belonging

to the other gender. The application would then be subject to a 6 month reflection period at the end

of which the applicant would confirm his or her wish for a new number if that wish was still

present. The issuing of a new social security number would then permit changes to other identity

documents.

In addition to this change to the Central Person Registry law, amendments were proposed to

the Health Act and law on assisted reproduction. Those changes were presented as consequential

changes of the CPR law proposal, based on the fact that trans people would now be able to gain

legal gender change without having undergone surgery. The aim of this second law proposal was to

legally secure that individuals would retain access to relevant health care, following a legal gender

change. This was especially important in relation to pregnancy related health care for biological

women who had gained legal status as men. Additionally, the criteria for accessing castration

surgery, as part of a physical gender change were modified.

The exact changes proposed to the Health Act and law on assisted reproduction, were first

and foremost concerned with wording and definitions. Because of the new legal possibility of a man

becoming pregnant, the word “woman” was changed to “the pregnant one” where applicable

(Folketingstidende 2013-14, tillæg A, L189). Also, in the law on assisted reproduction, definitions

of woman and man were added. For the purposes of that law, it was suggested that woman be

13

defined as “a person with a uterus or ovarian tissue” and a man as “a person with at least one

testicle” (Folketingstidende 2013-14, tillæg A, L189). This clarification meant that trans people

would have access to assisted reproduction in the same way as other individuals, as specified in the

law.

The changes to the criteria on access to castration, as part of a physical gender change, were

more substantial. The old criteria had specified that, in order to be eligible for castration, a patient

had to show signs of “significant mental disorders or social impairment” due to his or her sexual

desire (Folketingstidende 2013-14, tillæg A, L189). This criteria dated back to 1935. The suggested

changes to this criteria included removing the need of “significant mental disorders or social

impairment” and allowing access to castration with the prerequisite of a diagnosis of

transsexualism. An applicant would further have to show that his or her wish to undergo castration

surgery was persistent and that he or she was fully aware of the consequences of the surgery

(Folketingstidende 2013-14, tillæg A, L189).

The legal process

Both law proposals were passed by Folketinget, the Danish parliament, in June 2014. The

following table shows a time line of the main steps in the legal process. For the sake of simplicity,

the law proposal on changes to the Central Persons Registry and the law proposal on the changes to

the Health Act and law on assisted reproduction will hereafter be referred to as the CPR law

proposal and Sundhed (e. health) law proposal, respectively.

Table 1. Time line of the Danish legal changes.

October 2011

A new government comes into power in Denmark, a coalition government

between Socialdemokratiet, Socialistisk Folkeparti and Radikale Venstre.

The new government includes in its coalition agreement that it plans to

look into the legal side of sex change and see if steps can be taken to

abolish sterilisation requirements (Regeringen, 2011)

January 2013

A work group is formed by the government with the aim of looking into the

matter of legal gender change

February 2014

The work group submits its report (Justitsministeriet, 2014)

30

th

_{of April 2014}

_{The Danish minister of economic affairs and the interior presents the CPR}

law proposal in parliament. The Danish minister of health and prevention

presents the Sundhed law proposal in parliament.

11

th

_{of June 2014}

_{The law proposals are passed in parliament}

1

st

_{of September 2014 The new laws take effect}

As shown in the table above, the government behind the law proposal was voted into power

in 2011. This government was a coalition between three political parties; Socialdemokratiet,

Socialistisk Folkeparti and Radikale Venstre. The prime minister of the government was Helle

Thorning-Schmidt from Socialdemokratiet (“Regeringen Helle Thorning-Schmidt I,” n.d.). This

was a centre-left government, as the names of the political parties suggest. The following parties

were in opposition, many of them centre-right or right on the political spectrum:

•

Venstre, Danmarks Liberale Parti, (a right wing party despite the name)

•

Dansk Folkeparti

•

Radikale Venstre

•

Enhedslisten

•

Liberal Alliance

•

Det Konservative Folkeparti

Additional actors

Apart from political parties and their MPs, several other different actors played a part in the Danish

political debate leading up to the 2014 legal changes. These are different organisations that sent in

their reviews on the two law proposals. Among them is LGBT Denmark. Another trans advocate

organisation in Denmark is Foreningen af transkønnede i Denmark (FATID). This organisation did

not send in an official review but was, as LGBT Denmark, a lead actor in advocating for the law

and pushing for political action. In fact, it is difficult to tease out the exact influence of each of the

two trans organisations as both claim to have been lobbying and trying to get their case for

abolishing sterilisation heard within political parties (Haffner, 2015; Pedersen, 2015).

Interestingly, those two organisations had different views on what the best legal reform

would be and the Danish trans movement did therefore not present as a unified front. FATID

specifically positions itself as an alternative to LGBT Denmark in terms of political views. In

FATID's opinion LGBT Denmark represented a view that is too liberal (Haffner, 2015). It was

FATID's belief that applicants for legal gender change should be required to undergo some form of

interview or assessment. A spokesperson from the organisation stated that this was not due to a

believe in transgender as a mental disorder. On the contrary, the aim here is to give advice and make

sure that the option for legal change is only utilised by trans people (Haffner, 2015).

LGBT Denmark argued for a different approach. In their opinion there should be no

prerequisite of assessment, neither from a medical professional nor from any other professional.

There should be no restrictions for legal gender change applications (Pedersen, 2015). Ideally, a

15

spokesperson from the organisation explains, there would be no reflection period between the point

in time when an application is submitted to when it is accepted and processed. Nevertheless, in

terms of opportunity for a legal change in this area, the organisation settled for the 6 month

reflection period imposed by the government (Pedersen, 2015). From what has been described here

as the differences between the two main trans advocate organisations in Denmark, we can see that

the law that was passed was more in line with the views of LGBT Denmark than those of FATID.

Several other organisations gave their formal opinion of the two law proposals. A short

description of each of those can be seen in the table below.

Table 2. Descriptions of Danish organisations that reviewed the two law proposals.

Name

Description

AIDS Fondet (The AIDS Foundation) AIDS Foundation is a private organization working for a

world free of HIV and a world in which sexual health is a

right and a reality for all. We work both in Denmark and

internationally, and we focus on the groups that are

particularly sensitive and vulnerable to HIV.

Description found at www. aidsfondet.dk

Amnesty International-Danmark

Amnesty International is a global movement fighting for

freedom, justice and dignity for every human being. Our

members and activists are crucial to our work.

Description found at http://amnesty.dk

Danske Regioner (Danish Regions)

Danish Regions is the interest organisation for the five

regions in Denmark. Its overall mission is to safeguard the

interests of the regions nationally as well as internationally.

Description found at www. regioner.dk

Det Etiske Råd (The Danish Council

of Ethics)

The Council advises and creates debate on biotechnology,

which affect human life, our nature, the environment and

food. The Council also works with ethical issues related to

the health care sector.

Description found at ww w. etiskraad.dk

Finansrådet (The Danish Bankers

Association)

The Danish Bankers Association is a professional

organisation representing the banks in Denmark. Our

members are ordinary banks, savings banks, cooperative

banks, and Danish branches of foreign banks.

Description found at http://www.finansraadet.dk

Institute for Menneske Rettigheder

(The Danish Institute for Human

Rights)

The Danish Institute for Human Rights is an independent

state-funded institution. Our mandate is to promote and

protect human rights and equal treatment in Denmark and

abroad.

Description found at http://humanrights.dk

LGBT Danmark

LGBT Danmark - Danish National Association of Gays,

lesbians, bisexuals and transgender people is an

organization with a focus on the fields of gender identity

and sexual orientation.

Description found at http://lgbt.dk

Aalborg Universitet, Department of

Health Sciences

The University's review was prepared by C. Graugaard,

professor at the Research center for Sexology, Clinical

Institute. Aalborg University offers education and research

within the fields of natural sciences, social sciences,

humanities, technical and health sciences.

Description found at http://www.en.aau.dk

Dansk Psykiatrisk Selskab (Danish

Psychiatric Society)

Danish Psychiatric Society is a medical society that has as

its main task to promote Danish psychiatry and Danish

research in the area.

Description found at http://www.dpsnet.dk/

Sex og Samfund (The Danish Family

Planning Association)

The Association works to create greater awareness of

issues concerning sexuality, pregnancy, contraceptive

methods and sexually transmitted diseases. We are

committed to ensure that health and sex education are

recognised worldwide as human rights, irrespective of age,

gender, religion, marital or social status.

Description found at http://www.sexogsamfund.dk

Danmarks Apotekerforening

(Denmark's Pharmaceutical

Association)

Association of Danish Pharmacies is an employers- and

trade organization of pharmacies. The Association

represents the pharmacists' professional interests.

Description found at http://www.apotekerforeningen.dk

A note on the Danish system for social security numbers

It might seem strange that the main legal change for legal gender change was made to the

17

law on the Central Person Registry. However, the reason lies in the fact that, in Denmark, the social

security numbers are gender based, an even number signaling female and odd number male.

Therefore, the biggest part in a legal gender change is getting a new social security number. This is

done through the Central Person Registry (Det Centrale Personregister or CPR). The system for

social security numbers was developed back in the 1960s. At that time, when such systems were not

half as sophisticated as they are today, it was seen as a smart technical solution to be able to

represent two different types of information in one number (Pedersen, 2015). But times have

changed and now the system poses problems e.g. to trans individuals.

A note on the concepts of sterilisation and castration

Although discussions about hindrances to legal gender change for trans people usually refer

to sterilisation, sterilisation requirements and forced sterilisation, it is right to note here that the old

law in Denmark required trans people to undergo castration surgery (Folketingstidende 2013-14,

tillæg A, F, L182, L189, Justitsministeriet, 2014). Danish law makes a distinction between

sterilisation (d. sterilisering) and castration (d. kastration). In short, sterilisation refers to the

“unplugging” of the reproductive organs, which could be either irreversible or reversible.

Castration, on the other hand, refers to the complete removal of the gonads which is of course

irreversible (Folketingstidende 2013-14, tillæg A, F, L182, L189, n.d.; Pedersen, 2015).

Theoretical framework

The theories most relevant for this present research can be roughly divided into three categories.

First of all, there are theories regarding the importance of studying policies and political discourses.

Secondly, there are theories that address the special nature of policies, such as the ones under

analysis here, that deal with intimate and private aspects of our lives. Thirdly, there are theories that

specifically address forced sterilisation of trans people and focus on medical ethics and individual

rights to reproduction. These three categories will be addressed in turn.

Theories regarding the importance of studying policies and political discourses.

Policies are important to analyse since they are a tool through which power is wielded. Our

lives as citizens are shaped by policies, they are the way in which we are governed. And today

almost every aspect our our lives is governed in this way, even our most intimate aspects, such as

our gender, sexuality and reproduction. Verloo and Lombardo point out that the way policies are

framed can have “concrete and material consequences” and that these “different ways of framing

can generate completely different solutions” (2007, p. 32). In other words the affects of policies are

very real and those affects depend on the way that policies are framed by the parties involved in the

political debate. Because of this, it is crucial to analyse the discourse behind policy and legislation.

Moreover, having access to the discourse is vital, for with having access to the discourse one has the

power of framing the issues being tackled. In analysing policy discourse we need to ask who took

part in the discourse, what arguments were used, and how the problem was framed. Or as Foucault

put it, what we need to ask about a specific discourse is:

“what were the most immediate, the most local power relations at work? How did they

make possible these kinds of discourses, and conversely, how were these discourses

used to support power relations?” (Foucault, 1978, p. 97).

This is exactly one of the aims of this thesis research; to look at how power is wielded through

policy work, how different groups, different voices, exerted power by gaining access to the policy

discourse.

The importance of looking closely at the voices present in a certain political debate, also

stems from an emphasis on individual rights, e.g. the right to be heard. In this sense, having a voice

and being able to contribute to political debate is seen as a basic element of social justice. Thus,

paying attention to different voices during policy analysis can be seen as the critical feature in the

analysis (Verloo & Lombardo, 2007). On a similar note, it is also important to identify and

recognise silences in a given political debate. Silences can give us information on what issues

(and/or voices) are not considered to warrant political attention (C. L. Bacchi, 2009). Policies affect

19

the way we live our lives, i.e. they have material effects, and silences within a policy debate can

also have a very real effect. If a non-normative group does not get included in a certain policy, this

can result in the group's invisibility in the wider society and complicate their access to resources

(Lind, 2009; Verloo & Lombardo, 2007). In this way, specifying and articulating silences within a

policy discourse can be be a part of “an agenda for change” (C. Bacchi, 2000, p. 46).

The emphasis on silences plays a big part in Bacchi's “What's the problem represented to

be?” (WPR) approach to policy analysis. Although this approach was not directly employed in this

master's research, different dimensions of the method are certainly relevant. In WPR, a new way of

looking at how we are governed through policies and “how governing takes place” is offered, by

making a distinction between problems and problematisations (C. L. Bacchi, 2009, p. vii). With this

distinction, attention is brought to the fact that problems do not necessarily exist out in society.

Rather, they are shaped and formed through the very processes that at the same time try to fix them,

namely political debates. It is those discursively created problems, or problematisations, that need to

be analysed and interrogated, according to Bacchi.

Definitions and knowledge production place restraints on the ways to change. Exposing the

hidden processes of meaning making, within political debates, can help show why a certain political

change has proved difficult to achieve. This is what Bacchi calls “the constraints imposed by

discourses” (C. Bacchi, 2000, p. 47). Understanding that the role of definitions in outlining

knowledge, and thereby the consequences a certain policy has for people, is key to truly grasping

the meaning of a political debate (C. L. Bacchi, 2009). Exactly because of this vital role, we need to

pay attention to definitions within policies and the way that actors within a debate define various

aspects of the issue at hand. Two factors especially, can have a large impact on the way definitions

are presented. Those are values and competing interests (C. Bacchi, 2000). An actor's values and

norms, as well as their political aims and interests, can decide what definitions are used and how

and this can shape the outcome of a policy debate. Because the resulting policies have real effects

on real people, definitions and their use are crucial to understand.

This is not to say that the use of specific definitions or their effects are always deliberate.

Verloo and Lombardo point out that definitions of the issue at hand, or policy frames, “originate in

routines and rules that commonly are applied in certain contexts without an awareness that these are

indeed rules or routines, and that they could have been different” (Verloo & Lombardo, 2007, p.

32). Furthermore, policy actors, just as most other individuals, have what we can call neutral

prejudices or biases that impact how they interpret the social world. The biases of any given policy

actor can mean that they pay more or less attention to a particular framing of an issue, as opposed to

another (Verloo & Lombardo, 2007).

A quick note will be made here on the concept of discourse within policy analysis. Bacchi is

herself cautious about the use of the terms discourse and discursive. Even though there is no doubt

that the idea of discourse has been hugely beneficial to studies such as feminist studies, in allowing

them to point out “the importance of meaning-making in political life”, the use of the terms has

increased exponentially, to the point where their meaning has become unclear (C. Bacchi, 2005).

In this relation, it is important to remember the difference between using discourse and

being constituted in discourse. In the Danish political debates, analysed in this research, trans

people appear as a clear object of discourse. However, an interesting aspect of the analysis is to

determine to what extent trans people, or organisations that represent the group, were also agents in

the debate. There is a difference between, on the one hand, standing outside the discourse and being

able to exert influence over what discourses are used and then the extent to which actors in the

political debates are themselves part of those discourses and affected by them (C. Bacchi, 2005).

Here, Bacchi makes a distinction between the limiting aspect of the discourse's definitions and

interpretive schemas and the intentional use of those same definitions and schemas. A focus on both

those aspects is needed when studying a political discourse.

Theories that address the special nature of policies on intimate matters

The specific policies, analysed in this research, are concerned with two extremely intimate features

of our lives; our bodies, more specifically our reproductive organs, and our gender identity. Insights

into policy analysis of such intimate policies are discussed below. Additionally, a good part of this

section is dedicated to the concept of intimate citizenship, which acts as this thesis main theoretical

concept. As will be explained the concept is a useful way of summarising various aspects that relate

to intimate rights.

Policies on intimate issues and our personal lives, lie at the heart of debates on how much

control the state, as such, should have over its citizens. Examples of such policies are those on

abortion or same sex marriage, as well as the policies analysed in this master's research, on gender

identity and sterilisation. Those issues are what Amy Lind calls “hot button issues” (Lind, 2009, p.

35). “Hot button issues” often concern non-normative issues, related to sexuality and reproduction,

that are seen as a threat to the heteronormative order. Many of those issues are becoming

increasingly globalised and have become symbols of “larger struggles over westernization,

globalization and sovereignty” (Lind, 2009, p. 35). As such, these topics cross traditional left/right

political party lines and often mirror a wider cultural debate in a given society (Lind, 2009).

There is a certain overlap here with ideas put forward by Htun and Weldon (2010) about

what they call doctrinal policies. These policies present a “jurisdictional conflict between the state

21

and other organizations over the administration of kinship relations, reproduction, and sexuality”

(Htun & Weldon, 2010, p. 210). Essentially, those conflicts centre around the question of what one

is allowed to do with one's own body. Issues that in most countries fit the description of doctrinal

policies are abortion, family law and reproductive freedom.

Htun and Weldon have presented a framework for comparing policies on sex equality. In this

framework the separation between doctrinal and non doctrinal policies forms one axis whilst the

difference between gender-status policies and class-based policies forms another axis. With this

scheme, the authors draw attention to the importance of context, when analysing intimate policies.

They argue that both the national context, as well as international influences, play their part in

shaping policy issues. Each policy issue is distinct in that each separate issue has a different set of

actors, who again play bigger or lesser role depending on the specific issue, and each separate

policy debate evokes different fissures and disagreements (Htun & Weldon, 2010).

Theorising about the different impact factors for sex equality policies around the world,

Htun and Weldon suggest four main factors; “state capacity, institutional legacies, vulnerability to

international pressure, and degree of democracy” (Htun & Weldon, 2010, p. 208). The importance

of the different factors then varies depending on the particular policy topic. International pressure

will, for example, matter more in gender-based policies than those that focus on class. And state

effectiveness will weigh heavier in gender policies where societal norms may speak against change.

As we will see in the case of Denmark, all of the factors above, especially international pressure and

degree of democracy, contributed to the passing of a law on legal gender change for trans people.

Through this framework, Htun and Weldon also point out to us that countries that we

perceive as advanced democracies are not necessarily always the front runners in relation to gender

equality and human rights (Htun & Weldon, 2010). These countries, e.g. the Scandinavian

countries, also struggle with implementing best practice policies, not the least when it comes to

intimate policies.

A slightly different set of theories that are fascinating to use for the purposes of analysing

the Danish case, are theories on policy diffusion, i.e. how to explain how different countries adopt

similar policy changes, how policy makers learn from each other and look to each other for

precedence (see Cravens, 2015; Gilardi, 2010; Shipan & Volden, 2008; Taylor, Lewis, Jacobsmeier,

& DiSarro, 2012). A few articles have specifically looked at the policy diffusion of gender equality.

One focus here is to what extent international organisations and advocacy groups play a part in

spreading policies and related ideas (see e.g. True & Mintrom, 2001). On a similar note, Bell and

Binnie show us how sexual identities and related politics have become globalised. They explain

how the “politics of transnational sexual citizenship, such as the “Europeanisation” of human rights

22

law” are growing (Bell & Binnie, 2000, p. 5).

Globalisation plays an important part in ideas abou policy diffusion. As described by

Weyland:

“As the world grows smaller, policy making is no longer a domestic affair, but

increasingly shaped by external inputs” (Weyland, 2009, p. 2)

Sadly the scope of this thesis does not allow me to go further into those theories and I will therefore

have to content myself with only mentioning them here and pointing out their relevance to the

Danish case.

As explained before, one of the main theoretical concepts of this thesis is that of intimate

citizenship. For this reason a good amount of attention is paid to this concept in the following

paragraphs. The concept of intimate citizenship, a relatively new theoretical concept, can be viewed

as a way to embrace the multiple societal changes, in late modern societies, that affect our everyday

intimate lives (Plummer, 2003, 2005; Richardson, 2000; Weeks, 1998). Indeed, just the fact that this

concept has surfaced in the first place tells us a lot about what changes have been going on in this

regard. The concept has been used to talk about various things that are changing in our private lives,

such as new and publicly recognized family forms, new sexual and gender identities, the recent

medical technologies that make it possible to modify the body in various ways as well as

reproductive technologies that open up new possibilities for conceiving a child (Plummer, 2003), as

mentioned in the introduction to this thesis. In highlighting those, the concept of intimate

citizenship explores how ideas about citizenship and rights and duties have been employed to deal

with those new ways of living.

Before delving deeper into ideas and theories about intimate citizenship, it is right to point

out the related concept of sexual citizenship. There are different views on whether the two concepts

should be seen as synonyms (see e.g. Weeks, 1998). Ken Plummer sees sexual citizenship as one

part of intimate citizenship, the latter concept being wider and more inclusive (Plummer, 2003, p.

65). For the purpose of this thesis I have chosen to refer to the two as synonyms and to use the name

intimate citizenship. This is mainly because I believe the term intimate better describes the issues

faced by trans people, both as regards gender identity, gender related surgeries and fertility.

Another slightly confusing aspect of intimate citizenship is that the concept has no clear cut

definition. But this is deliberate. The aim of the concept is to alert us to emerging issues, be “open

and suggestive” and, in that way, act as a “sensitizing concept” (Plummer, 2003, p. 13) that

challenges us to think beyond what we thought about citizenship before. Indeed, many theorists

have pointed out that traditional conceptions of citizenship are also not clear cut. Citizenship,

however we look at it, is a highly contested concept and there is no consensus “on the nature of

23

citizenship” (Cossman, 2007, p. 5). Intimate citizenship is, in many ways, put forward as a criticism

on classic views of citizenship, pointing out their neglected areas. Other similar lines of criticism

include feminist theories and challenges based on post-colonial theories. The classical model of

citizenship, most often linked to T. H. Marshall, focused on three strands of citizenship; legal,

political and welfare (Plummer, 2005). However, since those ideas were put forward “the world has

both moved on and regressed [and] ideas around citizenship have been extended” (Plummer, 2005,

p. 90). Citizenship has been extended as a response to life stories that clearly show us how some

groups and issues fell outside the classical understanding of citizenship.

The classical ideas of citizenship were also primarily (if not exclusively) concerned with the

public sphere of life. The very idea of “citizen” is still very much connected with public rights and

duties. Because of this, intimate citizenship may sound much like an oxymoron (Plummer, 2003, p.

15). But what critiques have highlighted is that citizenship cannot shun what happens in the private

sphere. Private lives have obvious implications for the wider society, as feminists pointed out, and

have to be taken into account when talking about rights and duties of citizens (Richardson, 2000).

Arguing for an intimate view on citizenship has much to do with the imagined divide between the

public and the private. I say imagined, because what is becoming evident, and the concept of

intimate citizenship indeed helps us to understand, is that the line between public and private is

fading. There are various areas where the line is contested. Take the body as one very obvious but

important example; is the body private or is it public? Who has control over it and who is allowed

to modify it and why? Questions such as these show that the public-private divide is one of the most

important spatial dimensions of intimate citizenship (Bell & Binnie, 2000).

Another way to look at the theme of the public-private divide is that issues that were

traditionally regarded as part of the private and intimate sphere of our lives, are now becoming

public concerns and being claimed in political debates (Cossman, 2007). Closely related to this

development is what Cossman (2007) refers to as a process of normalisation. This is where, for

example, different sexualities, sexual and gender identities are making their way into social norms

and society's institutions, for example the institution of family.

A good example of this are issues of sexuality. In fact, much of the underpinnings for the

concept of intimate citizenship originated in the political struggles of lesbian and gay people. Their

fight has for example shown us that citizenship is always to some extent sexual and most of the

times it is predominantly heterosexual. By challenging this restrictive focus, gays and lesbians

paved the way to a broader definition of what constitutes the political field (Bell & Binnie, 2000;

Cossman, 2007).

Citizenship is about many different boundaries. Apart from that between private and public,

24

boundaries also exist between “the collective and the individual [and] between entitlements and

duties” (Bell & Binnie, 2000, p. 35). It is also about borders in the sense that some people are in and

some are out. Becoming a citizens is a process, “a complex and uneven process of crossing borders,

reconstituting the terms and subjects of citizenship as well as the borders themselves” (Cossman,

2007, p. 9). Citizenship is about how we, as individuals, become recognised as subjects of the

society we live in. In Cossman's words, citizenship is:

“...a set of rights and practices denoting membership and belonging in a nation state. I

frame citizenship as including not only legal and political practices but also cultural

practices and representations. […] I also see citizenship as invoking the ways that

different subjects are constituted as member of a polity, the ways they are, or are not,

granted rights, responsibilities, and representations within that polity, as well as

acknowledgement and inclusion through a multiplicity of legal, political, cultural, and

social discourses. […] It is about the discourses and practices of inclusion and exclusion

[…] .” (Cossman, 2007, p. 5).

Drawing the attention to responsibilities, Cossman further argues that in the neo-liberal state

that has privatised its welfare system, the individual can no longer rely on the state but has to

assume responsibility himself (Cossman, 2007). The connections made between intimate citizenship

and both neo-liberalism, individualism and globalisation are inspiring and fascinating but sadly

beyond the scope of this thesis (see e.g. Bell & Binnie, 2000). I will, however, allow myself to

mention briefly one aspect of this connection, that is self-governance. It has obvious connections

with responsibilities. One of the things that is argued for, in relation to the rise of the neo-liberal

state, is that the nation state now relies increasingly on individuals as self-governing subjects. One

might think that this meant increased freedom for the individual. On the contrary, as Cossman

illustrates, this merely creates an emphasis on those subjects who are considered to fail in the task

of self-governing. This groups people into good citizens and bad citizens. Bad citizens, often those

whose sexuality is classified as deviant, are considered threat to society and their failure of

self-discipline “invites the state directly back into their lives in all its coercive glory” (Cossman, 2007,

p. 15).

The attention paid to self-governance is further related to the central role of individual

decision making, in theories on intimate citizenship. We are increasingly having to make personal

decisions about how to live our intimate lives and we are confronted with questions about what is

indeed the right way to do this. New technologies, new ideas and pressures bring about “intimate

troubles” but also an array of choices and decisions (for an excellent example of the decisions and

pressure that comes with new medical technology see Gammeltoft, 2014). Decisions that never had

25

to be made before are now having to be made on a day to day basis (Plummer, 2003, 2005).

The decisions we are constantly making about our own private lives are undoubtedly taken

with society as a clear backdrop. In addressing the individual's control over his own intimate live,

his access to options and the freedom to choose, we also have to take into account that this freedom

is limited. In this relation, Cossman talks about “regulated freedom” (Cossman, 2007, p. 14).

Intimate choices and troubles bring moral debates and now “moral wars [are being fought] around

family politics, body politics, identity politics, gender politics, religious politics, technological

politics, and, of course, sexual politics” (Plummer, 2003, p. 34). A relevant consideration about the

nature of choices has been made by Janice Raymond, in relation to feminist theories:

“...feminists must go beyond choice and consent as a standard for women's freedom.

Before consent, there must be self-determination so that consent does not simply

amount to acquiescing to the available options” (Raymond, 1994, p. 103).

As Raymond highlights, we have to look at the choices that were available before a decision was

made. In the case of minorities, e.g. trans people, the available choices are often severely limited.

Literature addressing forced sterilisation of trans people, medical ethics and individual rights

to reproduction

In addition to the theories presented above, a few ideas and theories, specifically connected with the

issue of sterilisation as a prerequisite for legal gender recognition of trans people, need to be

mentioned. Firstly, apart from literature on the medical possibilities of trans people bearing children

(see De Sutter, 2009), some authors have also written on the ethics of assisted reproduction for trans

people. In their view, such medical assistance to trans people should be considered medically ethical

since there are no studies to date that show adverse affects for the pregnant individual, the baby or

the family as a whole (Murphy, 2010). Reproductive options for trans people can therefore not be

refused on scientific terms (Álvarez-Díaz, 2009).

Secondly, international organisations have issued statements and reports that denounce

sterilisation as any kind of prerequisite. Required sterilisation has been called out as a violation of

human rights since it disrespects bodily integrity and self-determination and furthermore violates

the individual's right to form a family (“Trans Rights Europe - Map & Index 2014,” n.d., “WHO |

Eliminating forced, coercive and otherwise involuntary sterilization,” n.d.; World Professional

Association for Transgender Health, 2012).

Thirdly, the concept of reproductive justice is a useful tool for the purposes of this research.

As described by Nixon (2013), it is both a conceptual framework and a movement-building tool,

that can be used to analyse “...who can access what reproductive possibilities and under what

26

conditions.” (Nixon, 2013, p. 79). As a framework it also considers “...all the factors that affect the

right to have children, not to have children, and to parent the children we have.” (Nixon, 2013, p.

80).

Methods

Critical frame analysis (CFA) was the principal method of my research, used as described by Verloo

and Lombardo (2007). CFA is “an in-depth analysis of the different dimensions of a policy

discourse” (Verloo & Lombardo, 2007, p. 32). The approach also emphasises that different actors in

the debate have different interpretations of the policy issue at hand. Through a set of “sensitising

questions” CFA aims to “explore, metaphorically, what is actually hidden under the carpet” in the

case of a certain policy (Verloo & Lombardo, 2007, p. 41).

A set of “sensitising questions” is applied in order to detect various aspects of what is

referred to as a “policy frame” (Verloo & Lombardo, 2007, p. 32). A policy frame, a principal

theoretical concept, can be explained as a schema that organises our knowledge of the reality

around us. As such, it can also serve to direct attention to certain aspects of issues at hand, rather

than others. The central features of a policy frame are “diagnosis” and “prognosis”. Together these

features explain what is seen as the problem in a given issue and what is imagined to be the solution

to that problem.

Critical Frame Analysis has a basis in social movement theory but was polished through

insights from gender and political theory within two large research projects. The first of those was

the MAGEEQ project. This project focused on gender inequality and specifically looked at how the

Gender Mainstreaming approach has been employed in different national policies throughout

Europe (MAGEEQ, n.d.). The MAGEEQ project had, as two of its objectives, to “construct a

conceptual framework to map out the various dimensions of gender equality policy frames” and to

“further develop & apply frame analysis as an innovative paradigm in explaining policy dynamics”.

Among its results, the research produced studies “on the various ways gender inequality is framed

as a policy problem” (MAGEEQ, n.d.).

In arguing the importance of studying gender inequality, the project highlighted that even

though equality between the genders bears the aura of a widely agreed upon aim of both national

and international actors, the topic is in fact riddled with discord. As explained on the project's

website:

“Gender inequality is not a simple problem, but a highly political problem, meaning that

there is no real consensus about what the problem is exactly, about why and for whom it

is a problem, about who is responsible for the existence of the problem, who is

responsible for solving it. This means that there is an ongoing political power struggle

over these definitions” (MAGEEQ, n.d.).

Critical Frame Analysis was further developed in the QUING project. In this large European

research endeavour, gender equality policies across Europe were identified, compared and analysed.

Among other questions, the project asked “what does gender equality mean in these policies” and

“are they open for voices of the movements that lay at their origin” (QUING, n.d.). Before the

application of the CFA approach sub issues of gender equality policies where chosen, namely

gender-based violence, intimate citizenship and non-employment. This was similar to what had

been done in the MAGEEQ project.

Although not focused on gender equality, my master's research does deal with an issue that

bears close resemblance to that topic. The policy issue of legal gender change for trans people

touches upon equality, gender roles and norms and rights of the individual. Furthermore, legal

gender change, requirements of sterilisation and implications of those for trans people's fertility

options, share some of the same obscurities as gender equality does. Thus, just as with gender

equality policies, there is not agreement on what the exact problem regarding legal gender

recognition policies is or if there even is one. Many politicians do not see the human rights

problems relating to the individual's rights to bodily integrity and believe that sterilisation surgeries

are simply part of a larger surgery that all trans people want anyway (Köhler, 2015).

Additionally, my research aims correspond in many ways with questions raised and

answered in both the MAGEEQ and QUING projects. Because of the similarities just described the

CFA was judged to be an appropriate and helpful tool for conducting the policy analysis for this

master's research. As the policy issue of legal gender recognition has been little researched and no

systematic analysis has been conducted of the specific legal changes in Denmark, conducting a

Critical Frame Analysis was a useful way of mapping out and identifying the dimensions of the

political debate. In this way the method allowed for the distinction of different arguments both for

and against changes to legal gender recognition, in line with the aims of this research. Last but not

least, even though sub issues were not directly employed in the analysis, the issues of fertility and

parental norms were observed closely as they repeatedly cropped up during analyses. Those sub

themes also receive special attention in the discussion chapter here below.

The descriptions of the CFA by Verloo and Lombardo (2007), as well as step-by-step

descriptions of the methodology of the QUING project (QUING, n.d.), functioned as my main

guidelines for conducting the analysis. Additionally, I made use of other papers from the MAGEEQ

and QUING projects as well as their project material available online. My first step was to construct

a time line of the key events in the Danish case. As cited in Verloo and Lombardo (2007), and

explained in the outline of the QUING project, this helped determine the time period for my data

gathering and point to relevant documents. Due to a smaller topic than that of the two big projects,

29