Proposition 51K3017

Projet de loi modifiant les articles 628 et 764 du Code judiciaire.

General information ¶

Submitted by

The Senate

Submission date

March 22, 2007

Official page

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Status

Adopted

Requirement

Simple

Subjects

surname civil procedure civil status sexual minority

Voting ¶

Voted to adopt

Vooruit PS | SP Open Vld MR

Contact form ¶

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Discussion ¶

July 6, 2006 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Minister, colleagues, our group will not approve the bill that is under vote, but will abstain. It is not that we believe that there is no need to create a legal framework for transgender people. Although there are estimated only 600 men in Belgium who feel like a woman, and 250 women who want to be a man, they are indeed in a legal vacuum today.

Furthermore, in its Goodwin judgment, the European Court of Human Rights unanimously ruled that the Member States of the Council of Europe must fully recognise the legal status of transgender transgender persons. CD&V has no objection to this. We therefore support the fact that transgender persons can change their first name already during the phase of hormonal treatment and that this becomes a right of the transgender and no longer a favor to be granted by the minister.

However, the bill also raises many objections. It is unclear and incomplete. It also makes choices that are not ours. The bill reduces the legal change of gender to a mere administrative procedure, analogous to the declaration of a birth. No judicial intervention is required. This is unacceptable for our group. After all, a change in gender is a change in a person’s civil status. The state of a person is in principle unavailable, because it is part of public order. The change of gender cannot therefore be determined solely by the official of the civil status. In such matters, the judge must judge. A marginal judicial review will already be sufficient, but it is still necessary, even if it is only to verify whether the essential conditions of the claim have been met.

Not only our group has expressed that opinion, but also your representative, Mrs. the Minister, has expressly stated during the discussion of the proposal in the committee that the judge should make a judgment on the gender change. The Government has questions about the proposal. You came back here later. During the hearings, academics also expressly stated that judicial proceedings are necessary in the event of a state change.

In this context, I would also like to point out that of the limited number of countries that have a transsexuality scheme, only an absolutely negligible number has an administrative procedure. I only think of Austria and Sweden.

By the way, it is difficult to compare our administrative services with those of other countries. It does not belong in any way to the task package of our civil state officials to decide on the substantive conditions of a state change. It is, by the way, the question of whether all officials and civil status officials of small, rural municipalities can assess the medical certificates submitted by a transgender. What will they do in case of doubt? How will they be able to verify whether the basic requirements have been met? How will they be able to conduct verification? Unlike a judge, they cannot appoint experts.

They also cannot call third parties to hear. What about the legitimate interests of the spouse and children? How will the civil servant who refuses to draw up an act indicating the gender be notified of his refusal? Furthermore, he is not familiar with the circumstantial motivation of a refusal decision. Will civil servants be trained for this?

The majority admit that transsexuality is a complex problem. How can this be left to the civil servants? They are not asking parties for that heavy responsibility. The risk therefore exists that most officials will act cautiously and will refuse to draw up an act at the least doubt or discussion. It is clear that an administrative procedure is not appropriate here. The only alternative is a well-regulated judicial procedure. The arguments that the majority has against this are extremely weak.

As regards the duration of judicial proceedings, the slow course of judicial proceedings is a structural problem that needs to be resolved structurally. It is not a matter of using that argument as a reason to leave such an important matter as a change of gender to the judgment of the civil servant.

Furthermore, we note that the duration of the judicial proceedings for changing gender is generally very smooth. Only the advice of the prosecutor's office sometimes leaves a long wait, but it is only required today when there are children. A clear legal regulation will prevent the different practices in different judicial districts. A legislative framework will lead to a faster process.

Another argument from the government concerns the cost of the judicial proceedings. Today it amounts to a total of approximately 800 euros, including costs and honorary fees of the lawyer. Legal assistance ensures that a transgender person in need has sufficient access to justice. If a legal regulation simplifies the procedure, the honorary remuneration of the lawyer will also remain limited. In any case, the court costs are low when the proceedings can be initiated by petition.

What about the uncertain outcome of the procedure? Nowadays, there are few problems and most courts recognize gender change. The request is in principle rejected only if it is an unconscious decision. If there is a clear legal framework here too, that will lead to even more positive statements.

Mr. Minister, you stated that the administrative procedure is under judicial control. I have my questions and concerns. It is not because an official of the civil status after drawing up an act indicating the gender you hear me right: after drawing up the act - and after its entry in the register of birth certificates informs the Prosecutor of the King that there is a judicial review. The adjustment has already been implemented. After that, the King’s Prosecutor can do nothing more, as the proposal only provides for a possibility of appeal against a decision refusing the change of gender.

How is there a judicial control here? It follows again from the procedural provisions that it was intended to also allow an appeal against a decision granting the gender change. The proposal therefore creates uncertainty and confusion.

There is, by the way, absolute uncertainty about what the reporting to the King’s Prosecutor exactly means and how it should be done. Does the official only have to notify that a document indicating the gender has been entered in the registers or must he submit all the documents on which he has based himself?

It is clear: the administrative procedure will lead to great legal uncertainty and a different approach in the different municipalities.

Furthermore, we believe that the proposal still contains many uncertainties and gaps, and it raises many questions. For example, the civil stand official must draw up an act indicating the gender. This suggests that the applicant’s gender was previously unknown, which is obviously completely incorrect.

The official of the civil status must register the act indicating the gender on the very day on which it was drawn up in the register of birth records. The act indicating the gender may however be drawn up in a municipality other than that in which the birth certificate was drawn up. You all know that the deadlines for sending by post exclude that an act indicating the gender on the day of formatting is already registered in the register of birth records of another municipality.

Even within the same municipality, an act indicating the gender may be entered in the registers on the same day at most exceptional times, since the signing of the acts by the mayor or by the competent vessels does not usually take place daily.

An appeal may be brought against the decision of the civil status official. This can be done through a one-sided petition. This means, therefore, that the civil stand official has no defence and can not even defend his decision before the court. In fact, the proposal provides that only the applicant is invited to provide clarification.

The prosecutor’s office is also not heard. This is not possible in a democratic rule of law.

A judge is also appointed to report on a given day. What should we understand under this? A judge must speak fairly and not report.

Colleagues, the bill has already received a lot of criticism, especially from transgender people and the associations that have engaged in it. They preferred to have no legal arrangement than the one on the table. The proposal was too restrictive, too paternalistic and too repressive. Our French-speaking liberal and socialist colleagues then stood on the brake and it seemed that the proposal would be stopped in the ice. In the end, a compromise text came out of the bus: quick, unthoughtful, full of gaps, and with a lasting great responsibility for the officials of the bourgeois state.

Our group will abstain.

Thank you, Mrs Van der Auwera. Now comes Mrs. Déom, and then Mrs. Vautmans, Mrs. Genot and Mr. Schoofs. Mr. Schoofs, you’re going to let all the ladies ahead, right?

Mr. Speaker, Mr. Prime Minister, Mrs. Deputy Prime Minister, dear colleagues, the proposal debated today and submitted for approval by our assembly is the conclusion of a debate that has been opened for a long time.

Already in 1985, following the examination of the case-law, in particular the Van Oosterwijck judgment of the European Court of Human Rights, Professor Vieujean wondered to what extent legislative intervention would not be necessary in order to clarify under what conditions the transgender can obtain the change of his birth certificate. by

First of all, I would like to welcome the excellent collaboration between the parliamentarians of the majority, which allowed for a serene and constructive debate. The debate was not easy because, undoubtedly, medical and ethical aspects were addressed. It essentially affects the autonomy of the person with regard to the determination of his life and his personal choices.

The debate initiated by the legislative proposal submitted by the majority was the occasion for a long maturation of ideas and allowed to bring the different points of view closer. by

I will recall that, for my group, the essential goal of the bill is to simplify the change of first name and gender of the acts of the civil status of the transgender. During the examination of the bill, we wanted to avoid certain scams. We felt that we should avoid any intrusion of the law into medicine, especially since it is constantly evolving. Indeed, it is not up to the legislator to regulate the choices of practitioners, established under their responsibility, whether transgender or other field.

Nor is it up to the doctor to substitute for the will of a party who clearly expresses his desire to belong to the other sex than that mentioned in his birth certificate. It is therefore in this specific framework, which I have just recalled, that we subscribe to the proposed administrative procedure, accompanied by a possible judicial review. by

The amended bill does not, rightly, question the opportunity of the person concerned to choose to change their gender, but simplifies their steps; I am convinced that it will soothe their suffering.

It is therefore with conviction that my group will vote in favour of the proposed text.

Thank you Madame Deom. Mevrouw Vautmans gets now the word, then Mrs. Genot in the dan of Mr. Schoofs. After this proposal, we move on to the interpellations.

Mr. Speaker, Mr. Prime Minister, Mrs. Minister, I am a very happy woman today. Today we are going to vote on a bill that we have been working on for a long time.

Why is this bill so important? It is my conviction that the quality and development of a society can be measured by how that society deals with the weakest. Do we ignore them? Are we stigmatizing them? Do we offer them a better future? It was our belief that there was still a lot to be improved for transgender people in our country.

On 11 March 2004, we submitted this bill with a majority. It is an important step because already in a resolution of 12 September 1989 the European Parliament called on Member States to adopt provisions on the right of transgender persons to change their gender.

Colleagues, transgender is actually a very unfortunate chosen term. It actually reminds me of sexuality, sexual preference and sexual perversion, while it is actually an identity problem. Contrary to what many people think, transsexuality is not a fashion phenomenon. It is of all times and of all cultures. What varies over time is how society deals with transgender people, how they are judged, considered, treated and accepted. In Samoa and Tonga, for example, two island states in the Pacific, transgender persons are fully accepted. They even have a function of bringing happiness in their community. However, in our modern world there is a great ignorance about transsexuality. Here they are very often stigmatized and excluded.

How is the state of affairs in our country? Fortunately, we are able to treat transgender people. Gent is known worldwide for the construction of the penis. People come from far and far to undergo treatment in our country. How many people are we actually talking about in our country? Ms. Van der Auwera has already pointed out: 1 in 16,500 people is transgender and 1 in 40,000 people is transgender. For Belgium, there are 600 male and female transgender and 250 female and male transgender. Transgender people are often compared to transgender people. However, this is completely unfair. Travesty is much more common in our country. In Belgium, between 1 and 5 people out of 100 have already had a travesty experience.

There are at least 100,000.

Colleagues, what can we do about transgender issues as politicians? Unfortunately, we can change very little on the path of medical suffering, but we can work on the legal and administrative path of suffering that these people must undergo after their surgery. Currently, the change of the first name is a favor of the Minister of Justice and the change of gender must take place before a court. During the discussion in the committee — Mrs Van der Auwera has repeated it here — the CD&V group welcomed the position that this should continue to happen before a court. Fortunately, the majority has a different opinion. We don’t think transgender people are criminals who need to appear in court. Transgender people should be helped. We do not think that a judge can judge gender adjustment. What will the judge do? Ask to show him? This is not the case in our modern society.

Therefore, our bill proposes that the change of first name becomes a right.

Mr Deseyn wishes to interrupt you.

Mr. Deseyn is interested in transgender people.

Mr. Speaker, traders sometimes have to deposit something in court or leave a statement. Candidates who will appear in the upcoming elections will also have to go to the court. The fact that you associate the court with a certain form of crime, I find it completely wrong. That, on behalf of our group, does not give any appreciation about the target group you are talking about. I think it’s quite drawn on bottles.

Mr. Deseyn, do you know what the difference is? A transgender person has no rights during the entire period after the operation and before the court ruling. The identity card is not correct, one walks around in women’s clothes, while there is a M on the identity card. They are constantly accused of being transvestites, while they are not. They cannot travel, they cannot rent a house, they cannot buy a house. That is the essential difference. Therefore, the majority has considered that an administrative procedure is the right way to treat transgender people in our country.

Mr. Schoofs, will you intervene later? Do you want to interrupt for a short time?

Mr. Speaker, I do not know how educated Ms. Vautmans is in our legal system and our rule of law, but there is indeed a difference between appearing before a civil judge or a commercial judge, as colleague Deseyn said, and appearing before a criminal judge. This has absolutely nothing to do with each other. I would like to communicate this side by side.

Ladies and gentlemen, I would like to give you a number. In 2004, the Ministry of Justice received 49 applications for name change.

Ladies and gentlemen, I would like to emphasize two small points.

We, together with the committee, asked the Bio-Ethics Advisory Committee for advice and it issued a positive opinion on the bill. The committee welcomes it and only regrets that we are not talking about intersexuality and I therefore suggest that we look at that problem in another bill.

At the margin of the criticism of the Gender Action Group, which Ms. Van der Auwera also referred to, I regret that she leaves the meeting while the debate is still full. The Gender Action Group has problems with a sentence in the bill. It states that the transgender, the applicant, will no longer be able to give birth or conceive children according to the original sex. Colleagues, with the medical techniques is very much possible. After hormone therapy and surgery, this is no longer possible. I do not see this as mandatory sterilization or discrimination. It is just a medical given.

Colleagues, this bill is a first, very important step in our country for the acceptance of transgender people. Are all the problems with transgender acceptance resolved? The stigma remains. The difficulties of explaining it to family, friends and staying at work. The adjustment of the diploma remains a problem. When there are children in the game, it remains a very delicate given.

With the approval of this bill, the legal and administrative suffering that these people have suffered to this day will be put to an end.

Mrs. Joy has the word. Then you follow, Mr Schoofs. I change languages and genders.

Mr. Speaker, when I saw the text of the first bill appear, I was delighted with the idea of recognizing transgender and organizing a thorough debate on this topic. The Parliament would finally take a clear position to enable transgender people to live a better life. The feeling of feeling closer to another sex than to his own is already painful in itself; it was normal for the legislator to look at this matter and try to change their situation in such a way as to reduce their suffering.

However, after meeting the field actors, we had to realize that the text was inappropriate. Fortunately, the members of the committee wanted to organize numerous hearings that allowed to significantly improve the text and not settle the medical aspects there. I believe that medical aspects should be dealt with between the person concerned and the medical team.

The text is still not satisfying to the people concerned. Rather than giving you my analysis, I will read you the last letter received by the ASBL Collective Trans-Action:

“We take note of the committee’s decision to endorse the transsexuality bill. Our positions on this matter have been known for a long time and we fully accept them.” You can find their hearings as well as the hearings of mr. Grollet (lawyer), who supported them on this occasion, in the Parliament report. by

I continue: “Contrary to what Ms. Vautmans claimed, transgender people in Belgium have no reason to rejoice over the text as it was approved. It is obvious that, in this case, the interest of Parliament must prevail over the interest of transgender people. This is done today. Belgium missed an opportunity to draft a law that could have served as an example for foreign countries. One could have thought for a moment that with marriage and adoption, Belgium was one of the most advanced countries in lesbian-gay-trans matters. We now know that this is nothing, and that the old conservative reflexes have a hard life. Obviously, the "trans" cause does not interest many people, including Parliament. This lack of interest is naturally reflected in the quality of the text.

Certainly, we come back from a long way and the improvements compared to the original text are noticeable. We recognize the accomplished path. At the same time, how to get rid of the impression that the legislator gives with one hand and takes back from the other. So, we do not understand why the commission found it necessary to further tighten the article 7 concerning the change of name, conditioning it to the prior hormone therapy, while today a diagnosis-certificate allows to have this change of first name and this, quite logically, some people can indeed very well pass in the other sex without hormones. Curiously, the adopted text makes the change of surname more restrictive for transgender people than for any other person who wishes to change a surname for any reason. We cannot therefore accept the official postulate that this law aims to simplify the life of transgender persons.

On the contrary, this formulation was elaborated without taking into account the practice and well-being of persons who, in the end, will bear the costs of this law. It would have been desirable for Parliament to take more into account the realities of the ground to give itself the means and the ambition to improve the name-change procedure for the persons concerned. Contrary to what one might think, this procedure does not always take place quickly or without hassle. We know this from the experiences of the people who contacted us.

Without a doubt, a more humane and pragmatic proposal could have been reached by organising from the outset a real consultation with those interested in this legislative initiative in the first place.

Beyond the official manifestations of contentment, transsexuals in Belgium will quickly notice at the test of the facts that the promises announced do not materialize at all in the current text. When we met with Ms. Vautmans on April 22, 2005, she found that the original version of the bill was no less good than the amended version today. It is true that laws ultimately only bother the people to whom they are applied.

Beyond this mood post, we hope for our part to have made a positive contribution to the debate. And we will continue to work towards giving this bill a more positive orientation.”

It might be interesting that we have an evaluation in a year or two, in order to verify that the objectives pursued by the law have been achieved and to decide on possible adjustments to the text.

Mrs. Joy, I would like to make a comment. You say that the text was drawn up without consultation with the parties concerned. We held hearings in our committee.

I was there.

All stakeholders have been heard and we have made the necessary adjustments. Personally, I’ve seen and heard about eighty transgender people and emailed them. 76 of them are very satisfied. Four Wallonians regret the bill. That is ultimately the reality.

Madame Vautmans, it seems to me that you did not listen carefully to what I said.

People consider that the first bill was drafted more with the medical body than with the associations concerned. He said he met with other associations. Obviously, they did not defend the same versions.

I highlighted the fact that hearing had taken place and that the debate had significantly improved the proposal. I hope you have noticed this too.

Many people regret that the procedures are more complicated. Some people I met told me that at the moment, it was going pretty well. Like you, I thought these people were facing huge difficulties. Now, even in remote corners of Wallonia, it would seem that it was not going so badly.

I confess that at first, I thought a little like you and your text seemed to me to be a good thing. However, after confronting this text with the multiple testimonials, I am much less sure of it. So I propose to do an evaluation in a year and a half to be able to see, on the ground, whether further adaptations are needed or not.

Mr. President, Mr. Vautmans called this proposal a first step thereafter. Unfortunately, I think it is a sluggish step, not a step in the right direction.

Do not misunderstand me: we want to show all understanding for people who are dominated by a grille of nature with transsexuality or intersexuality or just mention it. We heard a number of very interesting statements on this subject at the committee meeting. Some of them were very striking. This has indeed opened the eyes of everyone, as far as they were not yet opened, and demonstrated that there are indeed problems that the medical science must solve, and that the law can only pursue.

However, the legislative change that is now on the table is not for us the right legislative change. After all, a change in gender affects the state of the person. "The gender touches the state of the person," which is so incorporated in our law. It affects personality rights. In our law, it has always been the good habit and good practice to have judges judge personality rights and give them the last word in that regard. Unfortunately, this proposal is derogated from this.

Safeguards should also be introduced with regard to society, with regard to those persons who coexist with someone facing the problem of transgenderity and who wish to change their gender. In our opinion, a judge is still much better placed than a civil servant to enforce the law in it, to safeguard the personal rights of the person concerned, to protect society from certain abuses or extortions that could be made to the subject.

We therefore find it not at all a good thing, nor a solution, that transgender persons may step to the official of the civil stand to simply propose the change of their gender there.

We have no objection whatsoever to the fact that individuals are guided by the medical science; and that, once they have taken some steps through the medical world, they can submit a petition or a petition to the court. In that case, we will follow at least the two correct tracks: on the one hand, the medical science, which applies all knowledge and expertise to guide persons in such difficulties, and, on the other hand, the court that finalises that process, which ensures that both society and the person concerned themselves obtain legal certainty. That is what we lack in this bill, because that is what it means: legal certainty.

This legal certainty is meant not only for the person concerned, but also, for example, for the children.

It would be good that children could be heard by the court, or that they could in any way still enforce their rights. They should also be able to make their story before a judge. We miss that. As has already been said by Mrs. Van der Auwera later, that is the point in this bill that we stumble over, with all understanding for transgender people, with all understanding for that small group of people who actually have serious problems. The legal certainty, Mrs Vautmans, with all respect for your proposal, will not be served by this.

Children can be heard. Currently, children are not heard before the operation. What you propose would change nothing at all. What you propose is that one asks for prior permission from the court to undergo the operation. This is not the case at the moment. That is the choice your party makes. That only strengthens me in my belief that we can never go together in a coalition.

Mrs. Vautmans, I am not here to form a coalition with you, fortunately. In any case, I have never said—you are twisting things again and you are twisted well into that—that children should give permission. We ask that they be heard by a judge. Ultimately, it is the judge who decides. No one has the right to make the personal rights of another dependent on his consent, not even children from their parents. That must be clear. The Flemish Interest honors that legal principle. You must not distort my words. I only say that children should and even should be heard, because this problem in society and in families, where people want to change gender, is too important to pass on to an official of the bourgeois state. Let a judge rule. I think your bill would then be much better than the ease solution you are now taking and which in practice will cause problems. Pay attention to my words.

April 24, 2007 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, I would like to refer to my written report, given the technical nature of this matter.