'Gender identity’ in European anti-discrimination law: A need to go beyond a binary construction of sex/gender

Trans and non-binary people are highly vulnerable to discrimination, harassment and violence. A climate of opposition to LGBTIQ+ rights has gained ground in several parts of Europe, linked to rising populist homophobic and transphobic rhetoric in which LGBTIQ+ rights are considered as a threat to traditional heteronormative values. At the same time, there has been a significant increase in the attention for strengthening the legal status of trans and non-binary people at the international, European and national level.

This chapter examines to what extent (trans and non-binary) individuals are currently legally protected against discrimination on grounds of gender identity and/or gender expression in European Union (EU) law and under the European Convention on Human Rights. Despite the fact that EU anti-discrimination law does not enshrine the grounds of ‘gender identity’ or ‘gender expression’, the Court of Justice of the European Union has ruled that the protected ground of ‘sex’ in EU law is not limited to discrimination between (cisgender) men and (cisgender) women, but also serves as a proxy to include ‘gender reassignment’. Contrary to EU anti-discrimination law, ‘gender identity’ has been recognised by the European Court of Human Rights as a separate ground under the prohibition of discrimination included in the European Convention on Human Rights (ECHR). Despite the differences between EU law and the ECHR, it is striking that the protection of trans and non-binary people against discrimination in the two legal orders shows remarkable similarities: they are both anchored in a binary conception of sex/gender by attaching significant importance to a trans person's medical and social gender transition. In this respect, there is an urgent need for legislators and/or courts to go beyond the hierarchical binary conception of sex/gender in order to protect not only those who suffer from being inside but also those who suffer from being outside a stereotypical binary construction of sex/gender.