An analysis of the text of the Unified Clinical Protocol “Gender Dysphoria”

Insight NGO took part in the public consultation on the medical and technological documents standardizing medical care for gender dysphoria, which ran for a month starting on February 22, 2016. Unfortunately, in the version of the document “Unified Clinical Protocol of Primary, Secondary (Specialized) and Tertiary (Highly Specialized) Medical Care (UCPMC) ‘Gender Dysphoria’” approved on September 15, some of our comments were left unaddressed, and a number of new provisions appeared that give even greater cause for concern.
Below we set out the most significant points, with quotations from the text of the protocol and our comments.

“Issuance, to a person who has undergone an irreversible medical intervention, of a medical certificate of change (correction) of sex, approved in accordance with the established procedure, on the basis of which the question of the corresponding changes in that person’s legal status is subsequently decided” (p. 12).
“At the patient’s request, upon undergoing medical interventions for the correction of sex, namely surgical intervention, a Medical Certificate of Change (Correction) of Sex may be issued” (p. 26).
Note that in the draft UCPMC put forward for public consultation, the second of the quotations above read as follows: “At the patient’s request, upon undergoing medical interventions for the correction of sex, namely psychotherapy and hormone replacement therapy, a Medical Certificate of Change (Correction) of Sex may be issued”.
Many transgender people feel no need for surgical correction and oppose it as a mandatory condition for their legal recognition. This is confirmed by various studies, including those conducted in Ukraine by Insight NGO. The existence of such a condition forces them either to resort to surgical correction against their own wishes, or to remain in a situation where the sex and name in their documents do not match their appearance (acquired, for example, through hormone replacement therapy), which leads to many cases of discrimination.
The text of the UCPMC itself also states, with regard to surgical intervention: “This type of treatment is desirable but not mandatory for persons who have changed / are changing their sex” (pp. 18, 21).
If we turn to the first quotation, which speaks of an “irreversible medical intervention,” the question arises of the criteria for which intervention, and to what extent, will be deemed irreversible. We fear that doctors will thereby be able to determine this at their own discretion, which may lead to abuse.
The irreversibility requirement for obtaining permission to change one’s legal sex is also often justified by the claim that such a decision has to be as well-considered and as final as possible. In reality, however, this only places an additional burden on it. For if a person who has changed their legal sex realizes after some time that their decision was mistaken, then in the absence of irreversible medical interventions the mistake is not difficult to correct. If the interventions were irreversible, doing so is impossible without certain losses. On the other hand, a person who has not yet made a final decision about the scope of interventions they need, or who has limited themselves to a scope that is not considered irreversible but who in fact already lives in a social role corresponding to their desired sex, will under these conditions be unable to obtain recognition of their status at all.
Moreover, back in 2009, in the recommendations to Council of Europe member states from the issue paper “Human Rights and Gender Identity” the Council of Europe Commissioner for Human Rights Thomas Hammarberg called for “abolishing sterilisation and other compulsory medical treatment as a necessary legal requirement to recognise a person’s gender identity in laws regulating the process for name and sex change”.
In view of all the arguments above, we believe that a diagnosis of gender dysphoria should be a sufficient condition for obtaining the medical document that will serve as the basis for recognition of legal status (change of legal sex).

“Change of sex (change of legal sex) also falls among the measures for treating gender dysphoria for patients who have been living in their chosen gender role for some time and plan to continue living that way. It is carried out on the basis of the patient’s expressed will, their conformity with the medical-biological and socio-psychological indications for a change of sex, and their undergoing of medical intervention, by way of issuing a Medical Certificate of Change (Correction) of Sex” (p. 11).
As of today, the medical-biological and socio-psychological indications are absent from the package of documents – both from the approved version and from the draft that was published for public consultation. This is also cause for concern, given that in Ministry of Health Order No. 60 “On Improving the Provision of Medical Care to Persons Requiring a Change (Correction) of Sex” a number of such indications and contraindications were discriminatory in nature, restricting access to a legal change of sex for certain categories of transgender people (for example, those who have children under the age of 18 or who are married).
On the “undergoing of medical intervention,” see the argument above.

In the section of the UCPMC devoted to secondary (specialized) medical care, the following is stated with regard to the means of treatment:
“Required actions
Mandatory:
1) psychotherapy;
2) hormone therapy for persons wishing to change their sex (see para. 4.6.4 of Section IV)” (p. 17).
Also, in the section describing the stages of medical care:
“All patients, regardless of diagnosis, are prescribed psychotherapy aimed at disrupting gender binarity in the patient’s perception and, where there is a desire to change sex and consent to begin gender transition, problem-solving therapy for a more successful adaptation to the desired gender role” (p. 26).
“HRT is considered a necessary medical intervention in a change (correction) of sex, except in cases where HRT is medically contraindicated for the patient” (p. 28).
On July 26, 2013, the UN Human Rights Committee in its “Concluding Observations on the Seventh Periodic Report of Ukraine” recommended amending Order No. 60, stating the following: “any medical treatment should be provided in the best interests of the individual with his or her consent, should be limited to those medical procedures that are strictly necessary, and should be adapted to his or her own wishes, specific medical needs and situation”.
We would also point out that among the other sources they relied on, the drafters of the UCPMC list the “Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People” of the World Professional Association for Transgender Health (WPATH). These standards state, in particular: “Treatment is individualized: what helps one person alleviate gender dysphoria might be very different from what helps another person. This process may or may not involve a change in gender expression or body modifications”. Elsewhere it is also stated that psychotherapy, while highly recommended, should not be a mandatory requirement.
Finally, the text of the UCPMC itself contains the following paragraph: “Medical intervention for the correction of sex in gender dysphoria is to be understood as treatment measures in the scope that the patient considers sufficient to reduce the negative impact of gender dysphoria and to develop the characteristics of the desired sex, the role of which the person is able to perform in society” (p. 11). In other words, the scope of treatment is to be determined by the patient.
In view of the above, we believe that psychotherapy and hormone therapy, like any other medical interventions, should not be mandatory.
It should also be noted that the quotation above refers to para. 4.6.4 of Section IV, although in fact that paragraph is absent from the text of the document.

The following is stated regarding the diagnosis of gender dysphoria:
“4. If necessary, examination in an inpatient psychiatric setting for a period of not less than 2 weeks.
Monitoring of a patient with transsexual identification for not less than 2 years” (p. 16).
“The assessment is carried out on an outpatient basis through the patient’s visits to a psychiatrist for not less than 2 years. 
If necessary, the patient may be assessed in an inpatient psychiatric setting” (pp. 23-24).
The draft UCPMC read: “The assessment is carried out on an outpatient basis through the patient’s visits to a psychiatrist, who conducts the assessment over not fewer than two visits within three months. It is prohibited to assess the patient in a full inpatient setting”.
As for the inpatient psychiatric setting, the absence of any definition of what kind of need makes hospitalization there possible is worrying. This may lead to cases where it is, once again, prescribed at the doctor’s own discretion.
Transgender people who have gone through inpatient examination often describe that experience as negative and humiliating. On top of that, in order to undergo it they are forced to take leave from work or to interrupt their studies. At the same time, the text of the UCPMC itself states: “The diagnosis itself should be regarded as psychopathology neither by the doctor nor by the patient. It merely describes the characteristics of the individual and of their gender variation and must be taken into account when an individual medical care plan is drawn up jointly with the patient” (p. 24). Hospitalizing a person whose condition is not a psychopathology in an inpatient psychiatric facility, alongside genuinely mentally ill patients, is in our view nonsensical.
As of today, in developed countries diagnoses related to being transgender are hardly ever made in an inpatient setting. Instead, the prevailing approach is for the patient to see a mental health professional in the form of consultations.
In 2013, the already-mentioned “Concluding Observations on the Seventh Periodic Report of Ukraine” recommended “replacing the compulsory confinement of persons requiring a change (correction) of sex in a psychiatric institution for a period of up to 45 days with a less intrusive measure”. We believe that this recommendation is better served by the wording we highlighted above in the quotation from the draft than by the wording in the final version of the UCPMC.
We also consider the minimum 2-year period of monitoring of the patient excessive and unjustified. Note that even Order No. 60 spoke of one year (“Dynamic observation by a sexopathologist of a person requiring a change (correction) of sex, in order to determine the level of their social adaptation, for not less than one year”). Whereas for patients with severe gender dysphoria, any postponement or dragging out of the process of changing sex can only intensify it and lead to a deterioration of their mental state.
Given the wide variability of transgender experiences and of the approaches to them, the WPATH Standards do not set any restrictive time frames for diagnosis. They also recommend not imposing a requirement for a minimum number of psychotherapy sessions.
The 2-year period also contradicts the recommendation of the Committee of Ministers of the Council of Europe “On Measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity” (CM/Rec 2010(5)). According to it, “member states should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way”. A procedure in which official recognition is preceded by at least 2 years of observation can hardly be called quick.
The European Court of Human Rights, in the case of “Schlumpf v. Switzerland” also found that the mechanical imposition of a waiting period without regard to a person’s individual circumstances violates Article 8, “Right to respect for private and family life,” of the European Convention on Human Rights.
Therefore, taking these arguments into account, we consider it preferable not to set any limits at all on the period of monitoring of the patient.

Regarding hormone replacement therapy, the protocol states:
“Patients must experience persistent gender dysphoria in order to be eligible for hormone therapy” (p. 17).
This wording contains a contradiction, since the goal of hormone therapy is precisely to alleviate gender dysphoria – so the dysphoria not only cannot but should not be persistent. In addition, hormone replacement therapy is often lifelong, since it is needed to maintain the acquired characteristics of the desired sex – so it is important that transgender people be entitled to it even after they have made all the other medical and legal changes.
We believe that the quoted passage must be removed. Instead, the possibility of and the conditions for receiving hormone therapy throughout one’s life should be spelled out more clearly.

Regarding surgical interventions, the protocol states:
“Surgeon:
Where the patient so wishes and the criteria for this type of medical intervention are met (see para. 4.7 of Section IV), performs the following medical interventions: 
– for MtF patients: breast augmentation by means of silicone implants (mammoplasty); penectomy; orchiectomy; vaginoplasty; labiaplasty; clitoroplasty; facial feminization surgery; in individual cases emasculation;
– for FtM patients: removal of the mammary glands (mastectomy); hysterectomy; vaginectomy; metoidioplasty; phalloplasty; urethroplasty; creation of a neoscrotum and testicular implants, facial masculinization surgery” (pp. 13, 14).
The quotation above sets out the condition for surgical correction – that the patient wishes it. At the same time, the list of surgical interventions is given with “;” separators, which may later be misinterpreted as making all the listed interventions mandatory. In addition, the text refers to para. 4.7 of Section IV, although it is in fact para. 7.4 of Section IV that is meant.

 “Surgeons responsible for major, irreversible operations may not rely on the conclusions of previous specialists and must satisfy themselves that the chosen procedure is appropriate for the patient” (pp. 18, 21).
It is unclear how exactly, and on what criteria, a surgeon is supposed to satisfy themselves of this. Moreover, granting surgeons such powers on the one hand allows them to question the competence of the specialists who carried out the diagnosis, and on the other contradicts the provision that the patient may determine for themselves a sufficient scope of treatment measures. We believe that the passage quoted above should be removed.

The subsection “Psychotherapeutic treatment” (pp. 37-38) in the section on medical care for children and adolescents is also bewildering. Most of this subsection is devoted not so much to being transgender as to homosexuality. Moreover, the outdated and pathologizing term “homosexualism” is used with reference to it, which is unacceptable. The wording “The proposed methods of treatment include interventions aimed at reducing the desire to be a person of the other sex” likewise means nothing other than conversion therapy, which in this very section is condemned with regard to sexual orientation – but the same must apply to gender identity as well.
We believe that the text of this subsection is largely irrelevant and should be rewritten entirely.

Let us note separately that the UCPMC does not address at all the situation in which, by the time they turn to a doctor, a transgender person has already begun the process of changing their sex on their own (for example, taking hormones or adapting to their desired gender role). Obviously, the needs of such a person will as a rule differ from the needs of someone who only wishes to begin the change.
However, if our comments on the non-mandatory nature of any medical interventions and on examination time frames are taken into account, the need to consider such cases separately falls away.