Gender transition in Ukraine: (non-)compliance with human rights standards

Introduction

2016 became a landmark year for transgender people in Ukraine, because that was the year when the regulatory framework governing the transition procedure in general and, in particular, legal gender recognition – that is, obtaining personal documents in which the name and gender marker correspond to the person’s gender identity – was substantially changed. Left in the past were such requirements as an examination lasting at least 30 days in a psychiatric inpatient unit in order to obtain a diagnosis, and mandatory surgical intervention; such restrictions as being married or having children under 18; and such structures as the single nationwide commission on the change (correction) of sex.

At the same time, the new procedure still remains far from ideal, because gender recognition under it continues to depend on obtaining a diagnosis and undergoing medical interventions.

This is a rather general assessment of the quality of the current procedure, but its strengths and shortcomings can also be examined in more detail. The international organization TGEU – Transgender Europe – has developed a convenient tool for this: a checklist of conditions that regulatory documents governing the gender recognition procedure must meet in order to be as compatible as possible with human rights. This checklist can be found in Insight’s publication – an adapted translation of the corresponding TGEU material, on p. 49.

So, we will go through the entire list of criteria and analyze each of them – whether the condition it sets out is implemented in the Ukrainian trans procedure. In doing so, we will use the following ratings:

“++” – the condition is explicitly spelled out in the regulations governing the procedure;

“+” – the condition is not spelled out directly, but from other provisions, from other regulations, or from the absence of provisions to the contrary it can be concluded that it is met;

“±” – the condition is not spelled out, and it follows from the provisions of the regulations that it is met only partially, or their texts leave room for ambiguous interpretations;

“-” – the condition is not spelled out directly, and from other provisions it can be concluded that it is not met;

“–” – the provisions of the regulations governing the procedure explicitly contradict this condition.

The regulatory framework

Before turning to the analysis, let us list the regulations that directly govern the legal gender recognition procedure in Ukraine and that will therefore be considered first.

This set of documents includes the following:

1. Fundamentals of the Legislation of Ukraine on Health Care, Article 51 “Change (Correction) of Sex”.

Since the article is short, we quote its text in full:

“At the request of a patient, in accordance with the medical-biological and social-psychological indications established by the central executive authority that ensures the formation of state policy in the field of health care, a change (correction) of that patient’s sex may be carried out by means of medical intervention in health care institutions.

A person who has undergone a change of sex is issued a medical certificate, on the basis of which the question of the corresponding changes in their legal status is subsequently decided”.

2. Ministry of Justice Order No. 96/5 of 12.01.2011 “On Approving the Rules for Making Changes to Civil Status Records, Their Restoration and Annulment”, para. 2.16.9.

We likewise quote the full text:

“On the basis of a conclusion of the department of state registration of civil status acts, drawn up in accordance with the relevant medical certificate on the change (correction) of sex, that person’s given name, patronymic, sex and, where necessary, surname in the appropriate gender form are changed in the birth record”.

3. Ministry of Health Order No. 1041 of 5.10.2016 “On Establishing Medical-Biological and Social-Psychological Indications for the Change (Correction) of Sex and Approving the Form of Primary Accounting Documentation and the Instructions for Completing It”.

This order established the form of the “Medical Certificate on the Change (Correction) of Sex” – the document on the basis of which, as follows from the previous regulations, legal gender recognition actually takes place – and the grounds (indications) on which it is to be issued.

4. Unified Clinical Protocol of Primary, Secondary (Specialized) and Tertiary (Highly Specialized) Medical Care “Gender Dysphoria”, approved by Ministry of Health Order No. 972 of 15.09.2016.

This document regulates the medical part of the procedure that precedes obtaining the medical certificate mentioned above fairly fully and in detail. A more detailed description of it can be found in the publication “Gender Dysphoria from A to Z: A Clinical Protocol”.

What these documents have in common is that all of them use the term “change (correction) of sex”, which is a certain (albeit incorrect – yet it is precisely the one currently used in Ukrainian legislation) synonym for gender transition, the key element of which, in turn, is legal gender recognition.

Thus, the ratings “++” and “–” are possible only where provisions corresponding to a condition are present in one of these four documents, which we will hereinafter refer to by the numbers 1), 2), 3), 4). If, in order to establish whether a condition is met or not, one has to turn to other regulations that do not concern the procedure directly, this can only be a “+” or a “-”.

Now, having defined the regulatory framework, let us go through the list of criteria one by one.

Criteria for the procedure

• Separate procedures are available for changing the name and the registered gender.

The Civil Code of Ukraine contains Article 295, which defines the right to change one’s name: “1. An individual who has reached the age of sixteen has the right to change their surname and (or) given name at their own discretion” and so on. At first glance it seems that this really does not depend on gender in any way. However, a full name in Ukraine consists of a given name, a patronymic and a surname, and, as can be seen, this procedure offers no possibility of freely changing the patronymic (this is possible only in particular circumstances, such as a father changing his own given name, or adoption). Although there is no direct prohibition on such a change either, in the absence of clear regulation it can in practice be carried out only through a court decision. At the same time, the possibility of changing the patronymic is explicitly indicated in 2), but there it depends on the change (correction) of sex, that is, it is not a separate procedure. We can therefore conclude that the condition is not met in all cases. 

Rating “±”

• The applicant is free to choose their names, including gender-neutral names.

Neither 1) – 4) nor the above-mentioned Civil Code impose any restrictions on which names an applicant may or may not choose. At the same time, this follows from the texts only indirectly. One’s hand is already reaching out to give a “+”, but let us again recall that a full name includes a patronymic, which a person is not free to choose or change.

Rating “±”

• The text of the document clearly indicates the responsible institution (for example, an administrative body or a court).

What is meant here is the institution responsible for legal gender recognition, that is, effectively for changing identity documents. According to 2), the institution responsible for changing a person’s birth record is the department of state registration of civil status acts. As for the medical certificate on the change (correction) of sex, which has to be obtained beforehand, the institution responsible for issuing it is also clearly indicated in 3): the medical advisory commission of a primary health care center. Everything looks perfect, but 1) – 4) do not specify how gender recognition is to take place after the changes in the birth record, that is, the actual replacement of documents such as the passport, the employment record book, educational documents and so on – for this one has to turn to other regulations, where these matters are governed on general grounds.

Rating “+”

• The procedure is quick, and its maximum duration is regulated explicitly and clearly.

The duration of legal gender recognition itself is not regulated in 1) – 4) in any way. One could look for general timeframes in the regulations of the responsible agencies, but since the duration of the procedure must include all of its mandatory stages, it is more important to look at the time limits set in its medical part – 4). There one can find the following wording: “The assessment [to establish the diagnosis – I.I.] is carried out on an outpatient basis through the patient’s visits to a psychiatrist for at least 2 years” (p. 23). Since, according to 3), a diagnosis of “transsexualism” under ICD-10 is a medical-biological indication for obtaining the medical certificate, this two-year period is an integral part of the procedure. It is explicitly prescribed, and it certainly cannot be called quick.

Rating “–”

• The procedure is accessible to everyone regardless of economic or other capacity.

The procedure contains no conditions that would explicitly restrict access for certain categories of people on socioeconomic grounds. If, for example, the previous Order No. 60 contained such contraindications as “severe disturbances of social adaptation (lack of work or of a permanent place of residence, alcoholism, drug addiction, antisocial behavior, etc.)”, “pronounced decline in intelligence preventing an adequate assessment of possible complications”, its current version contains nothing of the kind. Let us nevertheless try to find out whether similar restrictions arise indirectly.

Let us look first of all at the cost of the procedure. The reissue of a birth certificate, as can be seen for example here, costs, at the time of writing, only UAH 0.51, which is not a prohibitive amount. The cost of obtaining a passport in the form of an ID card in the case of an exchange is UAH 279 for 20 days or UAH 366 for 10 days, which is more, but also not excessive. If we look at the medical part of the procedure, the cost of its components is not directly regulated and, in general, under current Ukrainian conditions it may be free of charge. However, 4) lists hormone therapy as a mandatory method of treatment (p. 17). At present there is no possibility in Ukraine for transgender patients to obtain hormonal medications free of charge or under health insurance. Thus, the cost of hormone therapy is in effect an implicit component of the procedure and may restrict access to it for people living in poverty, who cannot afford it on an ongoing basis.

Rating “±”

• Access to the procedure for persons with limited legal capacity (minors and persons under guardianship) is explicitly regulated.

While the other basic documents contain no explicit regulation, 4) should be examined more closely from the standpoint of the conditions that affect the possibility of obtaining a medical certificate on the change (correction) of sex. In particular, it contains the following wording (p. 12):

“A psychiatric examination of a child showing discomfort caused by a mismatch between their sexual self-perception, sexual behavior and the sex assigned to them at birth (and the associated gender role) is carried out, under the age of 14, with the informed consent of both parents; after the age of 14 – of both parents and the child”.

“Any therapeutic interventions within the framework of specialized psychiatric care for children with gender dysphoria may be carried out, if they are recommended by this protocol, under the age of 14 with the informed consent of both parents; after the age of 14 – of both parents and the child”.

In the subsection on treatment criteria we also find: “age 14 and over (in the case of the treatment of a minor, written consent from official representatives (parents, guardians) is required)” (p. 27).

Finally, the clinical protocol contains a separate section, “Specifics of Providing Medical Care to Children with Gender Dysphoria”. In it we see the following: “Children who have gender dysphoria are given the diagnosis of ‘gender identity disorder of childhood’, which, upon their reaching the age of majority, may be reviewed in accordance with the diagnostic categories for adults”. Since the indication for obtaining a medical certificate is a diagnosis of “transsexualism”, it follows that minors cannot obtain recognition under the procedure, but upon reaching the age of majority they can obtain it automatically if they went through the medical part of the procedure in childhood.

There is room for debate about the restriction itself, tied to reaching the age of majority, but its regulation in the text of the document is fairly explicit. At the same time, as regards persons declared legally incapable or persons whose legal capacity is limited by their being in places of deprivation of liberty, no explicit wording about them can be found in the text at all.

Let us note that the provisions cited above partly contradict the law “On Psychiatric Care” in Articles 11 and 12: “A psychiatric examination is carried out by a psychiatrist: of a person who has reached the age of 14, at their request or with their informed written consent”; “Outpatient psychiatric care is provided by a psychiatrist: to a person who has reached the age of 14, at their request or with their informed written consent”. The same law also contains the relevant regulation concerning persons under guardianship. These contradictions, however, make the procedure even more difficult to use (it is worth remembering that in such cases it is the law that has the higher force).

Rating: “±”

• Persons with limited legal capacity are involved in accordance with their personal abilities, and their best interests are a primary consideration in all decisions concerning them.

This point partly echoes the previous one, which cited the wording on informed consent. It follows from that wording that the opinion of a child under the age of 14 may in fact not be taken into account at all. As for adolescents over the age of 14, here a degree of autonomy on their part is emphasized: “Given that the development of sexual identity is a variable quantity, it is desirable that the adolescent set the pace of self-discovery independently during examination and therapy. An adolescent over the age of 14 may independently consult a general practitioner – family doctor” (p. 35), and great importance is attached to matters of confidentiality. Further on (on p. 37) there is also a clearer formulation: “A child psychiatrist must: 1) inform and advocate on behalf of children and adolescents with gender dysphoria and their families in their communities”. Even so, the text does not directly show that the interests of minors or of other persons with limited legal capacity take priority in the relevant aspects of the procedure.

Rating: “±”

• Access to the procedure for citizens living abroad is explicitly regulated.

There is no direct mention of such citizens in documents 1) – 4) whatsoever. At the very least, the possibility of obtaining outside Ukraine a medical certificate that is supposed to be issued by primary health care centers currently looks doubtful.

Rating: “-”

• The recognition of foreign decisions is explicitly regulated.

Once again, no specifics on this matter can be found in our regulatory framework. It may be assumed that a diagnosis of F64.0 “transsexualism” obtained abroad should be recognized in Ukraine, since it is based on the global standard ICD-10. Likewise, medical interventions performed abroad should be taken into account in Ukraine where there are documents confirming them. At the same time, a foreign identity document in which a person’s gender identity is recognized will not become grounds for the same recognition in Ukraine without obtaining a diagnosis and a medical certificate on general grounds. In any case, the absence of clear regulation leaves a wide range of uncertainty and opportunities for abuse in these matters.

Rating: “±”

• Access to the procedure for foreign nationals, including refugees, is explicitly regulated.

As in the previous points, there are no direct mentions in 1) – 4). While they can obviously go through the medical part of the procedure and obtain a medical certificate, they have no birth record in Ukraine, so to change their birth certificate, as well as their passport and other basic identity documents, they will have to turn to institutions abroad. And the replacement of, for example, a residence permit is carried out on the basis of those documents, in which their personal data must already have been changed accordingly by the time of the application.

Rating: “-”

• Asylum seekers and detained non-citizens have access to immediately effective interim provisions for the duration of the asylum procedure or of their detention.

What is meant here is that they should be issued temporary identity documents in which their gender identity would be recognized. Nothing of the kind is envisaged in the current procedure at all.

Rating: “-”

• The applicant’s privacy is protected during and after the procedure.

Among 1) – 4), only 4) contains isolated mentions of the need to ensure confidentiality, and they concern adolescents alone. For example, with regard to the psychiatric examination: “The results of the examination are confidential; information about the specifics of sexual self-perception, behavior and gender role may be communicated to the parents if the child consents and the child psychiatrist is confident that this will not lead to a crisis situation in the child’s primary support group” (p. 12). In general, however, these documents do not provide for any separate mechanisms designed to protect the privacy of trans people in the context of the transition and legal recognition procedure.

Instead, we can turn to the “Fundamentals of the Legislation of Ukraine on Health Care”, where Article 40 defines the concept of medical confidentiality: “Medical workers and other persons who, in connection with the performance of professional or official duties, have learned about a citizen’s illness, medical examination, check-up and their results, or about the intimate and family aspects of their life, have no right to disclose this information, except in the cases provided for by legislative acts. When information constituting medical confidentiality is used in the educational process or in research work, including in cases of its publication in specialized literature, the patient’s anonymity must be ensured”. And also to more general legislative acts, such as the Constitution of Ukraine and the Law “On Personal Data Protection” – under which, however, situations related to legal gender recognition can be considered only on those same general grounds.

At the same time, the “Instruction on the Procedure for Maintaining Employees’ Employment Record Books” states in para. 2.13, on changing entries concerning surname, given name and patronymic, that the former data are simply crossed out and the new data are written next to them. In addition, the taxpayer registration card number contains a digit encoding the holder’s sex – male or female – and there is currently no mechanism in Ukrainian legislation for changing this number. All of this does nothing whatsoever to ensure the protection of a trans person’s private data in the sphere of employment after the procedure. 

Rating “±”

• Professionals who disclose an applicant’s personal information without their explicit permission must be held liable. 

Here again we have nothing specific in the documents governing the procedure, but there is Article 145 of the Criminal Code of Ukraine “Unlawful Disclosure of Medical Confidentiality”: “Intentional disclosure of medical confidentiality by a person to whom it became known in connection with the performance of professional or official duties, if such an act caused grave consequences, shall be punishable by a fine of up to fifty tax-free minimum incomes of citizens, or community service for up to two hundred and forty hours, or deprivation of the right to hold certain positions or engage in certain activities for up to three years, or correctional labor for up to two years”.

There is also the general Article 182 of the same Code, “Violation of the Inviolability of Private Life”, which states: “Unlawful collection, storage, use, destruction or dissemination of confidential information about a person, or unlawful alteration of such information, except in the cases provided for by other articles of this Code, shall be punishable by a fine of five hundred to one thousand tax-free minimum incomes of citizens, or correctional labor for up to two years, or arrest for up to six months, or restriction of liberty for up to three years”. Cases where such a violation is committed repeatedly are also addressed separately.

Rating: “+”

• The involvement of, or interference in the procedure by, spouses, children, work colleagues or third parties is prohibited.

There is currently no such prohibition in documents 1) – 4). Moreover, among the mandatory medical interventions that must precede gender recognition, clinical protocol 4) lists psychotherapy, and family therapy is recommended as one of its forms (pp. 17–18). Also, as has already been noted, for minors to gain access to the procedure the informed consent of both parents is required (p. 12).

Rating: “-”

• The grounds for refusal, such as fraudulent intent, are limited and explicitly listed.

Document 3) sets out the “medical-biological and social-psychological indications for the change (correction) of sex”, and therefore it is precisely the absence of such indications that may serve as grounds for refusing to issue a medical certificate and for the subsequent refusal of recognition. The core of these indications is the presence of “transsexualism” under ICD-10, and establishing this diagnosis (or refusing to do so), although regulated to a certain extent by 4), is based on rather vague criteria and therefore depends to a large degree on the particular psychiatrist – on their views and approaches, and on their subjective assessment of the patient and of the patient’s intentions.

Rating: “-”

• The applicant’s ability to appeal a decision is explicitly regulated, as is the institution to which the appeal is to be submitted.

The text of 4) contains the following wording regarding tertiary care facilities: “A psychiatrist of a health care facility providing tertiary medical care… reviews the diagnosis established for the patient at the secondary care level if the patient disagrees with it” (p. 13). However, this concerns only appeals against the diagnosis; for the other stages of the procedure no similar mechanisms are explicitly prescribed. At the same time, the possibility of lodging an appeal through the general court procedure of course remains.

Rating “±”

• The entry into force of the legislation is monitored to ensure its proper implementation. Where practice does not comply with the legislation, judicial remedies or the review of decisions are applied.

There is currently no such monitoring on the part of the Ukrainian state, nor is any envisaged in any way. In practice, the role of such a monitoring institution is assumed by civil society organizations such as Insight, which have lawyers on their teams ready to litigate in the event of violations of the law. However, such work is these organizations’ own voluntary initiative, which they carry out at their own expense, and in no way an obligation.

Rating “±”

Criteria for the requirements

• The applicant’s self-determination is the sole basis for gender recognition.

According to 1), in Ukraine such a basis is the medical certificate on the change (correction) of sex, and to obtain it, in accordance with 3) and 4), a diagnosis of “transsexualism” and medical intervention are in turn required. Thus, the condition is not even close to being met.

Rating “–”

• The person is not required to make a statement about identifying with a particular gender; or alternatives to “male” and “female” are provided.

Although the texts of the documents do not directly require such a statement, in 3) the social-psychological indications for the change (correction) of sex are defined as “discomfort or distress caused by a discrepancy between an individual’s sexual identity and the sex assigned to them at birth”, which in one way or another presupposes the need to declare one’s sexual (that is, gender) identity. As for alternatives to male and female gender, Ukrainian legislation provides for none.

Rating: “-”

• No request is made for any intervention or opinion from a third party, whether professional (a mental health specialist, etc.) or private (parents, spouse, children, work colleagues, etc.).

According to 4), the opinion of a psychiatrist, that is, obtaining the corresponding diagnosis from them, is a mandatory precondition for gender recognition.

Rating: “–”

• There is no need for a request to confirm that a surgical procedure, hormone therapy or other medical or mental health treatment or condition has taken place.

The form of the medical certificate under 3) provides that it must indicate the “scope of medical intervention in health care institutions relating to the change (correction) of sex (endocrinological therapy, surgical intervention and its scope, etc.)”. Also, 4) lists psychotherapy and hormone therapy as mandatory methods of treatment (p. 17). In addition, on p. 26 one can find the following wording: “At the patient’s request, when undergoing medical interventions for the correction of sex, namely surgical intervention, a Medical Certificate on the Change (Correction) of Sex may be issued”, although elsewhere (p. 11) similar wording refers simply to medical intervention without specifying it.

Rating: “–”

• The procedure has no age limits and is fully accessible to young and elderly applicants.

There are indeed no upper age limits in documents 1) – 4). At the lower end the situation is more complicated. Although such limits are not spelled out explicitly, clinical protocol 4) provides that a psychiatric examination of a child in order to establish a diagnosis is carried out “under the age of 14, with the informed consent of both parents; after the age of 14 – of both parents and the child”. Thus, if the parents do not give such consent, a young or minor person will not be able to gain access to the procedure either – even though, as has already been noted in the section on criteria for the procedure, the law “On Psychiatric Care” in Article 11 does not require parental consent over the age of 14.

In addition, the requirement of a diagnosis of “transsexualism” under the medical-biological indications from 3) is also restrictive, since a different diagnosis is given in childhood, one that is not currently an indication for issuing a medical certificate. In 4) we find a direct indication of this: “Children who have gender dysphoria are given the diagnosis of ‘gender identity disorder of childhood’, which, upon their reaching the age of majority, may be reviewed in accordance with the diagnostic categories for adults” (p. 35). Thus, on this basis, legal gender recognition in Ukraine can be obtained only from the age of 18.

Rating: “-”

• The best interests of the child and the child’s right to be involved and heard in accordance with their evolving capacities prevail, including in cases of disagreement or of unwillingness to provide support on the part of parents or guardians.

A similar condition was already considered in the section “Criteria for the procedure”, and it was shown that, despite individual recommendations to take account of adolescents’ autonomy and of the confidentiality of the information obtained from them, it is generally impossible to assert on the basis of the text of 4) that the best interests of the child prevail.

Rating: “±”

• Diagnostic assessment of a child’s gender identity and other forms of verification of a child’s identity are explicitly excluded.

This has already been discussed above: diagnosis is, on the contrary, one of the key elements of the procedure in accordance with 3) and 4).

Rating: “–”

• The procedure is fully accessible to applicants who are married or in a registered partnership.

Here we can make a small historical digression and recall Ministry of Health Order No. 60 – the document that governed the medical part of the procedure until 2016. In it, being married was explicitly included in the list of contraindications. In the current document 3), which repealed the previous one, this contraindication, along with a number of others, was removed, so there is no longer any such restriction. At least one case is already known in which a transgender person who remained married was able to obtain legal recognition and change their documents.

Rating: “+”

• An existing marriage or registered partnership must remain valid and unchanged. However, the applicant and their partner may freely choose to convert their marriage into a registered partnership or vice versa (where this is available).

This condition is currently not relevant for Ukraine, since there is no institution of registered partnerships in our country. Accordingly, if it were introduced, that would also have to entail the development of mechanisms for converting marriages into partnerships and vice versa, and how exactly they would work together with the gender recognition procedure can only be guessed at now.

Rating: “-”

• The procedure is fully accessible to applicants who are parents or guardians or who have visitation rights with children (regardless of the children’s age).

We can again recall Ministry of Health Order No. 60, in which having children under the age of 18 was presented as a contraindication. The documents in force today no longer contain such restrictions.

Rating: “+”

• The procedure is fully accessible to applicants who have been convicted or have a criminal record. 

There are no mentions of this in documents 1) – 4), but in Article 295 of the Civil Code “The Right to Change One’s Name” we find that ongoing criminal proceedings against the applicant, their being under administrative supervision or wanted by foreign states, or their having an outstanding criminal record are grounds for refusing a change of name. Open questions also remain as to how, in the case of a stay in places of restriction of liberty, a trans person’s access to the doctors and medical interventions required to go through the procedure would be ensured, especially interventions such as hormone therapy, which require the regular use of medication.

Rating: “-”

• The applicant is not required to live for a certain period of time in accordance with their gender identity (the so-called “real life experience”) or to use the requested name.

Although documents 1) – 4) do not impose such requirements directly, 4) contains the following wording regarding interaction with the psychiatrist under whose observation a transgender person must be: “The psychiatrist discusses with the patient the possibility of beginning gender transition. They also agree on the start date and record it in the IPET [individual plan of examination and treatment – I.I.]; the frequency of the patient’s visits to the psychiatrist for the purpose of ongoing monitoring of the treatment process is discussed in the same way. During gender transition, the patient’s social adaptation in the desired gender role takes place. The role of the psychiatrist in gender transition consists in helping the patient to set the right direction of transition, so that the patient’s environment accepts them in the gender role that coincides with their identity” (p. 25).

Let us also note that one of the eligibility criteria for surgical interventions is “at least 12 months of continuous living in a gender role that coincides with one’s gender identity” (p. 33). On the one hand, surgical interventions are not a mandatory type of medical intervention and are performed at the patient’s choice; on the other, the ambiguity in the wording of 4) (“when undergoing medical interventions for the correction of sex, namely surgical intervention, a Medical Certificate on the Change (Correction) of Sex may be issued” – p. 26) may lead to cases where doctors refuse to issue a medical certificate if surgical intervention has not been performed.

Rating: “±”

• No other personal characteristics, such as appearance, sexual orientation, disability, health or social status, may be valid grounds for refusal or delay.

And again we can recall the previous Order No. 60, which contained such contraindications as “homosexualism, transvestism against the background of sex role transformation”, “severe disturbances of social adaptation”, “impossibility of carrying out an endocrine or surgical change (correction) of sex due to the presence of severe somatic diseases” and others. The documents of the current procedure no longer contain such restrictions.

Rating: “+”

Criteria for the consequences

• Once the decision has been taken, the applicant is considered to be of the registered gender in all circumstances.

At first glance this should intuitively be the case, but in reality the situation is more complicated, since changing the passport as the principal identity document does not mean the automatic change of all of a person’s other documents, including those that contain a gender marker. This means that, for example, in pension documents or documents relating to children, the person will be treated in accordance with the gender they were assigned before recognition until they themselves apply for those documents to be changed and complete the change. Moreover, since, unlike the change of the birth certificate and the passport, such procedures are not always clearly regulated, there is no guarantee that this process will go quickly and without complications.

Rating “±”

• Once the decision has been taken, the applicant has all (gendered) rights and obligations on an equal footing with other people of the same registered gender.

Documents 1) – 4) give no specific information on this matter, but certain restrictions of rights can be found in other regulations. Thus, according to Appendix 1, “Schedule of diseases, conditions and physical defects that determine the degree of fitness for military service”, to Order No. 402 of the Ministry of Defense of Ukraine of 14.08.2008, the diagnosis F64.0 “transsexualism” falls within the range of diagnoses on the basis of which people are found unfit or partially fit for military service. Thus, a trans man who has obtained this diagnosis for the purpose of legal gender recognition will, unlike cisgender men, be automatically exempted from military duty.

Also, although this is not a gendered right, let us note that “transsexualism” is additionally included in the list of diagnoses in the presence of which adoption is prohibited in Ukraine, in accordance with Ministry of Health Order No. 479 of 20.08.2008. Although a draft removing it and a number of other diagnoses from this list was prepared as early as the beginning of 2017, at the time of writing it has still not been approved, and the situation remains unchanged.

Rating: “-”

• Equality provisions aimed at protecting the applicant on the grounds of gender identity are explicitly regulated. (For example, a criminal code in which only a female person is considered a victim of violence must also allow trans men to be considered victims of violence).

Today the only legislative act in Ukraine that lists gender identity as a protected ground is the Labor Code, Article 2¹ of which prohibits discrimination on this ground in the sphere of employment. However, this cannot be called explicit regulation, since it does not spell out any specific mechanisms for identifying such discrimination and holding anyone liable for it. Moreover, gender identity is not mentioned in any other law at all.

Rating: “-”

• A change of name and gender marker leads to an automatic change (by the responsible officials), without a trace, in all registers maintained.

Such an automatic change is not provided for by law in Ukraine and does not currently take place. In practice, different institutions maintain their own different record-keeping systems, so a transgender person is forced to initiate the change of name and gender marker in each individual document themselves. And this procedure is far from always simple and transparent.

Rating: “-”

• As soon as the decision takes effect, the name(s) and gender marker previously used must not be publicly available or searchable, except with the applicant’s consent or in cases of overriding interest.

In the condition concerning the protection of privacy, we have already examined the situation with employment record books (para. 2.13), where the previous name is crossed out and the new one written next to it, so the old data remain available to the HR department of any organization that a trans person approaches for employment. In addition, until the necessary documents have been replaced, which can sometimes take a long time, it is envisaged that a person may use documents containing their previous personal data, attaching to them an extract on the change of name or of other data (Ministry of Justice Order No. 1269/5 of 24.07.2008, in particular Appendix 8). In every such situation, therefore, the person is forced to disclose their data.

If, for example, a person’s previous name was placed in some public database, then changing or deleting this data is as a rule done at the request of the person themselves (which is their right under the law “On Personal Data Protection”), rather than by the organization that maintains the database. So until they do this, it may remain there for an indefinite time. Thus, mechanisms for removing personal data from public access exist, but they are not perfect.

Rating: “±”

• A consequence of the change of name is the person’s right to be officially addressed, for any purpose, as belonging to the corresponding gender.

No such right is spelled out explicitly in Ukrainian legislation. We may assume that it should be observed by default, but the mechanisms that would ensure this are also obviously absent.

Rating: “±”

• State and non-state actors are obliged to correct gendered information, including letter and number combinations in educational certificates, work references and so on, without a trace, including retroactively.

As has already been mentioned above, institutions in Ukraine have no such obligation. Moreover, for example, the identification number of an individual taxpayer contains a digit that encodes the person’s sex (male or female). At the same time, legislation provides for no mechanism whatsoever for changing this number after legal gender recognition – on the contrary, it is envisaged that it is assigned to a person for life.

Rating: “-”

• Where necessary, additional documents are issued (exemption from military service, a certificate of discharge from the army, etc.) in order to ensure equal access to employment.

In the case of trans women, who after legal gender recognition are to be exempted from military duty just like cisgender women, they can obtain the corresponding documents on the basis of the diagnosis of “transsexualism”, which classifies them as unfit for service. Although unfitness is a somewhat questionable way of ensuring equality, this approach nevertheless works.

Rating: “+”

• Existing rights and acquired privileges related to marriage or a registered partnership remain unchanged.

As has already been noted above, the current Ukrainian procedure under 1) – 4) does not require the dissolution of a marriage, and therefore all the rights associated with it also remain. The only point worth noting is that problems may arise with replacing a marriage certificate with one in which the “husband and wife” will be of the same gender – at the very least, a case is known in which, after legal gender recognition, the civil registry office refused to replace it. In any case, however, the possibility of using the certificate together with the extract on the change of name remains.

Rating: “+”

• Acquired rights to a pension and/or similar periodic payments remain unchanged.

There is no explicit regulation of this matter in the procedure, so by default one may proceed on the assumption that they should remain. This, however, raises the question of how the situation would be resolved where a person who had a female gender marker in their documents retired, subsequently obtained legal gender recognition as a man, and after that turned out to be below the retirement age for men. Since there are almost no openly living elderly trans people in Ukraine, no examples of how such questions are resolved in practice are known at present. Let us note that, according to the legislation in force from 2021 the retirement age for men and women will be finally equalized.

Rating: “±”

• Close family relationships, especially custody and visitation rights with children, remain unchanged (as in the section on requirements).

As was in fact noted in the section on criteria for the requirements, the current procedure contains no restrictions that would affect these rights, and after its completion all rights should likewise remain, although this too is not spelled out explicitly.

Rating: “+”

• After gender recognition, a parent can be registered in accordance with the recognized gender as “mother”, “father” or “parent” in the birth certificates and other documents of children born previously and in the future.

The current forms of civil status records and birth certificates in accordance with Cabinet of Ministers Resolution No. 1025 provide that parents are indicated in these documents precisely as “mother” and “father”. Thus, the possibility of changing the “father” field to “mother” or vice versa – so that the certificate would list two fathers or two mothers – is provided for neither in legislation under 2) (if one considers the entire text of the document, and not only the article quoted at the beginning) nor even technically.

Rating: “-”

Conclusions

Now that each condition has been examined in detail, let us try to generalize the information obtained by making some calculations, in order to assess the quality of the procedure as a whole.

The checklist contains 17 criteria for the procedure, 13 for the requirements and 12 for the consequences; 42 in total. Let us treat a rating where a criterion is met and this is spelled out explicitly in regulatory documents 1) – 4) (++) as 100%, and one where the provisions of the documents explicitly contradict it (–) as 0%. Accordingly, “+” is 75%, “±” is 50% and “-” is 25%. Let us also assume that all the criteria have equal weight, although this is a simplified approach, since some of them apply to any case of using the procedure, while others concern only particular situations. For a rough assessment, however, this will be sufficient.

Summing up separately for each block, we obtain the following results:

• the criteria for the procedure are met at 43%
• the criteria for the requirements are met at 33%
• the criteria for the consequences are met at 46%

Thus, the most problematic component of the procedure is the presence of requirements that impose restrictions on trans people’s access to it under various conditions. The least problematic is the way legal gender recognition affects a trans person’s subsequent life in terms of respect for their rights. Yet even here the desired result is not achieved even by half. The overall level of compliance with the criteria amounts to only 40%.

Let us also take a closer look at the conditions with the best and the worst results.

It is somewhat unexpected that not a single criterion received a “++” rating. That is, even where conditions are met, this follows from the text of the regulations indirectly rather than being spelled out in them explicitly. This, however, fully matches the current situation, in which, unfortunately, human rights for transgender people receive no separate attention in Ukrainian legislation at all. At the same time, 8 conditions from the entire checklist fell only just short of the highest rating (2 of them concern both the requirements and the consequences), which make up 19% of it:

• the institution responsible for gender recognition is clearly indicated (it is indicated, but only for obtaining and replacing basic documents; the replacement of the others is governed by separate regulations);
• liability for the disclosure of personal information (follows only from other legislative acts);
• being married must not be a restrictive requirement, and after recognition the rights associated with it are retained (met, but not spelled out explicitly);
• having children, the same conditions (likewise);
• personal characteristics such as sexual orientation, state of health and so on are not grounds for refusal (likewise);
• the issuance of additional documents, such as discharge from military service (they are issued, but on the basis of unfitness in accordance with the diagnosis).

Simply by spelling all these things out explicitly in the regulatory documents governing the procedure, its overall rating could be raised by 5%. It should be noted, however, that in today’s Ukrainian conditions attempts at the most explicit possible regulation may carry certain risks. For example, if the text were to state that a person may obtain a certificate of the change of sex while remaining married and having children, such wording might attract the attention of the proponents of so-called “traditional values”, provoke resistance on their part and attempts to ban this altogether, as happened before. This of course does not mean that such wording should be abandoned entirely. It is rather a matter of taking the current situation into account and determining the best time and way to promote it.

A wholly negative rating of “–” was received by 5 criteria, or 12% of the checklist, of which 1 concerns the procedure in general and 4 concern the requirements it contains:

• the procedure is quick, and its maximum duration is regulated explicitly and clearly;
• the applicant’s self-determination is the sole basis for gender recognition;
• no request is made for any intervention or opinion from a third party, whether professional or private;
• there is no need for a request to confirm that a surgical procedure, hormone therapy or other medical or mental health treatment or condition has taken place;
• diagnostic assessment of a child’s gender identity and other forms of verification of a child’s identity are explicitly excluded.

The last condition can be regarded as a particular case of the condition on third-party opinions, one that concerns children. If we combine these two conditions, the 4 points we end up with have in common that all of them are as general as possible, concerning not just individual cases or categories of people but effectively everyone who turns to the procedure. It would therefore hardly be a mistake to assume that it is precisely the failure to meet these conditions that constitutes its most problematic aspects.

If the wording of these points is applied to the regulatory documents governing the Ukrainian procedure, these aspects take on a more concrete form:

• the requirement of a psychiatric diagnosis of F64.0 “transsexualism” under ICD-10;
• the requirement that observation by a psychiatrist in order to establish this diagnosis last at least two years;
• the requirement to undergo a medical intervention for the change (correction) of sex (under some wordings it must also be “irreversible” or “surgical”);
• the impossibility of obtaining legal gender recognition without meeting the requirements listed above.

In fact, the shortcomings identified through this analytical exercise coincide with those that can often be heard in the activist community, which once again underlines the need for a change in the procedure that would eliminate them.

Prospects for change

A reform of the procedure that would make legal gender recognition possible on the basis of self-determination alone does not look very realistic for Ukraine in the near future, since it requires the adoption or amendment of certain legislative acts at the level of the Verkhovna Rada, which will not be easy to achieve. Changing individual medical aspects, for which the Ministry of Health is responsible, is not only theoretically possible but has in practice already been on the agenda.

Thus, in 2017 a working group at the Ministry of Health, with the participation of human rights organizations, developed a number of amendments to clinical protocol 4). Had they been approved, as the Ministry of Health promised, the shortcomings mentioned above would have been partly improved as follows:

• The observation period would have become more flexible – although the same two years would have been envisaged by default, they could have been substantially shortened taking individual circumstances into account, above all where a trans person is already at a certain stage of transition.
• The various wordings concerning the medical interventions needed to obtain a medical certificate on the change (correction) of sex would have been brought together into a generalized “medical intervention”, the specific scope of which depends on the wishes and needs of the trans person themselves. Of the mandatory types of intervention, only psychotherapy would have remained.
• It was proposed to broaden the diagnosis on the basis of which a medical certificate is issued to “gender dysphoria”, which would also have included the childhood diagnosis and would therefore have allowed children and adolescents to obtain recognition.

As a result, at the very least:

• the rating of the condition “The procedure is quick, and its maximum duration is regulated explicitly and clearly” would have changed from “–” to “±”;
• the rating of the condition “The procedure has no age limits and is fully accessible to young and elderly applicants” would have changed from “-” to “+”.

The overall rating would thereby have risen to 43%. Of course, 3% is not such a large difference in quantitative terms, but any improvements – all the more so ones that affect key aspects – are better than none.

However, the Ministry of Health ultimately refused to sign the amended clinical protocol, arguing that the new rules allow foreign medical protocols from an approved list of sources to be introduced in Ukraine without adapting them, and that the old methodology for developing protocols would therefore no longer be supported. As a result, the agenda came to include the introduction of a new protocol based on British medical standards: “Good Practice Guidelines for the Assessment and Treatment of Adults with Gender Dysphoria” (the protocol currently in force is also largely based on this document) and “Interim Gender Dysphoria Protocol and Service Guideline 2013/14”. At the time of writing, the question of when this protocol will be approved by the Ministry of Health (if at all) remains open.

We will not analyze the proposed protocol here in detail from the standpoint of its compliance with the checklist of criteria – that could stretch to the next version of this article, which it will make sense to write if the protocol enters into force. Nevertheless, let us draw attention to individual aspects to which these criteria are applicable and in which it differs significantly from the protocol currently in force.

• As regards the maximum duration of the procedure, there is no requirement of at least 2 years of observation by a psychiatrist. Instead, however, there is a requirement to live “in a gender role that matches their gender identity for at least 2 years”. Thus, while removing one restriction, the procedure at the same time imposes an equivalent one elsewhere.
• The British guidelines are aimed exclusively at adults, so children and adolescents fall outside their scope, and their access to the procedure would become unregulated if this document were approved.
• The text explicitly mentions the need to ensure access to psychiatrists for people who are serving sentences.
• The conditions of access to the procedure for people with intellectual disabilities are explicitly addressed.
• Hormonal and surgical medical interventions are not treated as mandatory. At the same time, access to them requires recommendations from two doctors.
• Issues related to the protection of trans people’s privacy are spelled out more clearly.

As we can see, the introduction of this protocol will bring with it both pluses and minuses in comparison with the amended version of the protocol currently in force, which would bring only pluses. The conclusion suggests itself that a ready-made foreign solution is not always better than one developed at home. At least when that foreign solution can be taken only from a limited list, which excludes, for example, the “Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People” of WPATH – the World Professional Association for Transgender Health – which do not make it onto that list despite being widely recognized around the world. On the other hand, the British guidelines are expected to be revised soon (this was planned as far back as 2018) – so if a protocol based on the current version is introduced now, it will later be easier to move to a more progressive new one.

In closing, let us mention one more potential direction for improving the procedure. It is connected with the future introduction of ICD-11 – the International Classification of Diseases, 11th revision, which was already published by the World Health Organization in 2018 and in which transgender-related diagnoses no longer belong to mental illnesses. As a consequence, observation by a psychiatrist should be excluded from the procedure, and with it the associated two-year period, as well as the wording currently present in 4) that allows examination on an inpatient basis “where necessary”, without defining this clearly. Also, under ICD-11 “gender incongruence of adolescence and adulthood” is a single common diagnosis, so switching to it from “transsexualism”, even without additional changes, will automatically lower the age threshold for legal gender recognition, probably to 14. The only question is when exactly the new classification will be implemented in Ukraine and all these changes will become possible.

But be that as it may, one cannot stop at only those improvements that seem the most obvious and the easiest to implement in the current circumstances. Such individual measures could bring compliance with the criteria up to a level of around 50%, but this remains rather far from the desired ideal.

Instead, the results of this analysis could form the basis of a plan of gradual changes whose ultimate goal should be to achieve one hundred percent compatibility of the legal gender recognition procedure in Ukraine with human rights. And then to follow that plan – not always quickly, perhaps, but relentlessly. For the road is conquered by those who walk it.

Author: Inna Iryskina