Archive: Swedish Government’s (Now-Ended) Sterilization Requirement for Trans People

As of January 1st, 2013, Sweden no longer requires that trans people be sterilized in order to transition. This follows a move by the the Stockholm administrative court, after the Forensic Legal Council for Sweden’s National Board of Health and Welfare did not appeal a victorious legal challenge to the requirement.

What follows was being composed and near posted, when this change was announced.  Consequently, this article is out of date, but is being posted here to point out some of the distinctions that made this situation urgent — distinctions which media have often overlooked, and which were often eyebrow-raising of themselves (such as the ban on storing sperm or ova for in-vitro fertilization).  It also provides context for what will likely follow, such as the seeking of compensation from those who’ve been sterilized under this policy (which mirrors a previous precedent).  Additional discussion on the drive to end sterilization requirements can be found in TGEU’s Human Rights and Gender Identity Best Practice Catalogue, although the newest edition does not discuss Sweden specifically.

Archived:

On November 7, 2012, a coalition of trans and LGBTQ groups announced that they are launching a class action lawsuit against the Swedish Government for requiring that trans people be sterilized in order to be able to transition medically, access surgery and change the gender marker on their identification:

In an outstanding class action law suite [sic] under the leadership of civil rights attorney Kerstin Burman the Swedish Government will finally have to face the cost for the forced sterilizations of Trans* and Gender Variant Swedish citizens who for decades have to undergo sterilization and in order to enjoy the basic human right have their gender legally recognized.

Attorney Kerstin Burman will represent the claims of well over 100 victims of forced sterilization in Sweden…

International media has not taken much notice, partly because there are some important and sometimes alarming distinctions that are often missed.  So what’s the story on Sweden’s required sterilization of trans people?

The Gatekeeper Obstacle Course.

Swedish law currently allows transitioning transsexed people to change their identity documents but there are some problematic requirements, of which sterilization has been the widest known.  The law requires that people seeking document changes are Swedish citizens (which poses a difficulty for people who have immigrated to change Swedish-issued documents), are over 18 years of age (which provides difficulties for youth who start to present as their identified sex early), are unmarried (or if they’re married, they’re required to divorce — this is in spite of the fact that same-sex marriage has been legal in Sweden since 2009), have lived as their identified sex for over two years, and have been sterilized.  This law was proposed in 1968, passed in 1972 under then-Prime Minister Tage Erlander, and is thought to be the first law to make identification correction possible, anywhere in the world.

The sterilization requirement is also interpreted in a way that bans the banking of sperm or ova for use in in-vitro fertilization.  If a trans person has stored sperm or ova in hopes of parenting a child, they’re legally required to have that destroyed before they are allowed to medically transition to their identified sex.  Then, they need to have a certificate confirming that these have been destroyed sent to the Forensic Committee of the National Board of Health and Welfare.  The law literally stipulates that a trans person should not be able to procreate (although trans people are legally able to adopt).

Medical transition, surgery and gender marker change are all tied together in one incontrovertible knot.  Trans people who are not surgically-tracked have no option to amend their identification, and the intent to obtain surgery is a firm requirement in order to access the Swedish medical system at all for transition-related medical care, such as hormone therapy (although there are occasional individual medical practitioners who are willing to help with minor things like HRT, provided the patient pays).  Trans people require permission from the state (in the form of a gender team) in addition to the psychiatrists who act as gatekeepers, in order to access most stages of medical transition.  As Maria Sundin, co-chair of Transgender Europe (TGEU) and member of the Board of the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights (RFSL) notes:

The Swedish treatment protocol is based on the concept of the “true transsexual” which means that trans* women are expected to go all the way and go through surgery.  In Sweden, only upon recommendation of the government-run gender teams can a trans* person obtain hormones. Any doctor prescribing hormones without the written consent of the gatekeepers risks being struck off. Without a diagnosis of F64.0 Transsexualism (in the ICD-10, issued by the WHO) and an approval of the gender team, NO [surgical] procedures are available. 

Laser and electrolysis is done by private practitioners, and if paid by the patients, available with out prior OK.  Breast augmentation is possible as well from plastic surgeons in private practice but it’s difficult to find a willing surgeon, which is the case of mastectomy.

If you do not want to change your legal gender status (in Sweden this is strictly enforced on every [item of] documentation), you can change your name, get hormones via the internet or black market, silicon pumps, and go abroad for surgeries but to have this as a part of the national health care in Sweden you must see a psychiatrist for around three years before he will declare that you have the correct diagnosis.

Only a very small part of the trans* community do access trans*-related health care in Sweden…. Since the law on legal gender recognition in 1972, the number of cases was around ten every year, until the ’90s when it rose to 15-20, and today is at 50-60 per year.

… For FTMs, the typical requirement for sterilization will be removal of ovaries and uterus, and in many cases the vagina. The patient is offered a metoidioplasty (phalloplasties are generally not available at a quality that is [considered] acceptable). So the FtM trans* people do not need to do meta och phalloplasties before legal gender recognition. Mastectomies are done pre- legal recognition, so a number of FtX/M leave the gender team upon receiving hormones and mastectomies.

Sterilization and other requirements are considered problematic, and the law has been allegedly “under review” since 2006 — but with no definitive changes made during that time.  In January, the Christian Democrat party — which has a long history of fighting any legislation that would benefit LGBT people — convinced the government to keep the law as it was.  They argued that the issue was too complex, legally.  An RFSU post (now offline) in 2007 noted in frustration that:

I januari 2006 beslutade regeringen att tillsätta en kommitté för att se över om lagen behöver moderniseras. 19 Mars i år överlämnar de sin rapport till socialdepartementet. De är i nuläget inte villiga att kommentera vilka förslag utredningen kommit fram till. Vad som händer med deras eventuella förslag till lagändringar är delvis beroende av hur sittande regering väljer att driva frågan.

[In January 2006, the government decided to appoint a committee to review whether the law needs to be modernized. On March 19 of this year, it submitted its report to the Ministry of Social Affairs. They are currently not willing to comment on what the draft report concluded. What happens to any of their proposed legislative changes is partially dependent on whether the incumbent government chooses to pursue the matter.]

In 2009, Christian Democrat leader Göran Hägglund proposed a law that would have required castration of trans people but would allow the possibility of storing eggs and sperm for use in IVF procedures.  But aspects of the bill were actually worse than the 1972 law, so a coalition of trans and LGBT groups lobbied against it, and it was shelved.  The Christian Democrats are part of a coalition that has governed Sweden since 2006, and party leader Göran Hägglund is also the Minister of Health and Social Affairs.

The attorney in this current class action suit is no stranger to the issue, having previously acted as attorney for a trans man in March, when an administrative court ruled that the sterilization requirement violated the European Convention on Human Rights.  The Forensic Committee of the National Board of Health and Welfare appealed the decision to the Kammarrätten (Chamber Court), and the appeal is still pending.  And sterilization continues to be the regular practice in Sweden.

A proposal was reported to be coming up for discussion in Spring which would remove the divorce and citizenship clauses, but the sterilization requirement was taken off the table.  A spokeswoman for Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights (RFSL), Ulrika Westerlund, commented:

“We haven’t seen any initiative from lawmakers so we think that this can be taken through court instead.”

The lawsuit notes that Sweden recently had to compensate other people who had undergone forced sterilization, particularly Roma women, single mothers on low incomes, travelers, “anti-social” people, and persons with disabilities.  Sweden had an extensive eugenics program underway from 1935 to 1975, and it is estimated that 21,000 people were forcibly sterilized, with another 6,000 coerced into “voluntary” sterilization, and a further 4,000 for whom a reason could not be determined.  The Swedish Government reportedly offered 175,000 kronor ($26,000) to claimants, in settlement.  The sterilization requirement for trans people appears to be a relic of this eugenics era, although it has been the sole remaining area where government-mandated sterilization has persisted, since 1976.

In the West, I’ve often seen people comment that hormone therapy and sex reassignment surgery tend to cause sterilization, anyway, as though it’s a reason to dismiss the issue.  But there are some chilling distinctions in the elimination of the ability to pursue in-vitro fertilization, the option of regaining or keeping fertility by altering HRT regimes and opting out of sex reassignment surgery, and the literal reference in law that proscribes procreation by trans people.

And this combination of the sterilization and other requirements, narrow gatekeeping, and the need for multiple approvals means that many opt out of the public health process, creating some significant difficulties for trans people in Sweden.  Ms. Sundin adds:

We have an alarmingly high rate of illicit use of hormones.  The gatekeepers refuse patients who are on self-medication treatment and testing – you must spend a minimum of one year in psychiatric assessment before hormones are prescribed. Swedish trans* go to other countries for surgeries and silicon pumping. Discrimination in the labor market is rampant in spite of protective legislation (which only protects those who have a job), and unemployment is very high — worse, for the vast majority who are not accepted for legal gender recognition.

The class action lawsuit is ongoing. ** (this has changed, of course — see preamble above)