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Recently, the Dutch senate has agreed to an explicit ban on discrimination against transgender people. While in The Netherlands further steps are being taken to diminish the discrimination against transgender people, the United States did the opposite. The Trump government is trying to pass a law that makes it impossible for people to serve as anything other than their biological sex. People who have had hormone therapy or a gender-affirming operation, are . Trump wants the regulation to go into effect on April 12, but the House of Representatives adopted a non-binding resolution at the end of March to oppose the government's ban. Dr Christine Quinan (Gender Studies) and Dr Marjolein van den Brink (School of Law) reflect on the “transgender ban”.

Questioning power

According to Quinan, we need to look beyond the ban if we want to solve structural problems concerning discrimination and inequality of transgender people: “Trans and queer communities have rightly been wary of issues like military inclusion. Being allowed to serve in the military does not solve deep, structural issues of inequality (including transphobia and racism). Indeed, as many trans activists and scholars have emphasized, rather than simply fighting to be "included," we must instead interrogate the underpinnings of nationalism and militaristic intervention at home and abroad. However, it is necessary to examine this latest attack on trans and gender diverse people. Transphobic attacks have most certainly increased under the Trump administration.”

Human rights

Does this new proposed law violate international human rights treaties? This is hard to say, according to Van den Brink: “The United States have ratified several human rights treaties of the United Nations, although not many. Ratifying means that they have promised to legally uphold the rights in such an agreement, and are willing to be examined by the supervising committee. In regards to the ‘transgender ban’ the most relevant VN treaty is the ICCPR (International Covenant on Civil and Political Rights), but they haven’t accepted the corresponding right of complaint. Because of this, citizens of the US won’t be able to turn to an international committee of the UN. The supervising committee is able to address violations by the US, and the US is legally bonded to make a periodical report."

complex legal system

Additionally, the American legal system is relatively complex, according to Van den Brink: “Federal justice systems, like the American, are extremely complicated. The national government has limited power, a lot of the governing is left to the states. But the federal government is internationally responsible for the compliance with the treaties, also on a state level. Laws can differ wildly from state to state: several have far-reaching legislation regarding the change of legal gender for transgenders, while other, more conservative states, try to ban this outright.”

Shadow reports

According to Van den Brink, people who are banned from military service because they are trans, won’t be able to turn to an international human rights committee. But there are other possibilities: “Interest groups can make shadow reports about the problem at hand, and submit these to the governing committee of the UN for the periodical report. NGO’s can pinpoint the problems, and the committee can choose to use this additional information in their line of questioning, especially if a state of nation itself will not address this problem in their own reports.”

Furthering discrimination

Van den Brink also states that legislation can, to a certain extent, influence social opinions: “You could argue that the existence of a law can legitimize the situation on which the ruling is applicable. It can serve a symbolic role of affirmation. Take for instance a law in an Australian state in 1994 that forbade sodomy. In the lawsuit Toonen vs. Australia this law was challenged, because while the law wasn’t enforced in practice, Toonen argued that this ruling could be enforced at any time if the law still existed. Furthermore, this law legitimized the idea that discrimination against homosexuals was acceptable. The Human Rights Commitee ruled in favour of Toonen.”

Consequences of the transgender ban

According to Quinan, the bigger question is what happens if this law comes into effect: “If this law is upheld as constitutional, it could have serious consequences for all trans people, not only those currently serving (or wishing to serve) in the military. Gender-affirming and transition-related healthcare on a broader scale would be deeply impacted. One of the arguments that the Department of Defense used is that these sorts of healthcare provisions are costly. This reasoning could then be used by other types of employees, corporations, or insurance companies to argue that transition related healthcare (including hormones) should not be covered by health insurance. More importantly, however, is that the ban would be yet another way in which transgender and gender diverse people are targeted by the government in an attempt to flatten their experiences. This, I would argue, makes the ban on transgender people in the military of serious concern, not only in the U.S. but on a global scale.”

Christine Quinan

Dr Christine Quinan is an Assistant Professor of Gender Studies in the Department of Media and Culture Studies at Utrecht University. Quinan works at the intersection of queer/trans studies, postcolonial studies, and critical security studies and investigates how securitization and surveillance impacts transgender and gender-diverse bodies and lives. 

Marjolein van den brink

Dr Marjolein van den Brink is connected to the Netherlands Institute of Human Rights (SIM) and the Department of Law. She specializes in gender, equality and non-discrimination, human rights and personal- and family law. She is part of the (UCERF).

Together they direct the (Gender Identity Registration and Human Rights Effects), which examines interactions between human rights discourses and changes to the institutionalization of binary conceptions of sex and gender. Both are connected to Institutions for Open SocietiesI - an interdisciplinary research area of Utrecht University focused on the development and expansion of healthy open societies everywhere.