About this text
By Anne Hellum, Professor at the Department of Public and International Law, University of Oslo.
The text has been translated from Norwegian by Anna Young.
The diversity that we see in terms of gender and sexuality has put its mark on legislation – at least on the surface. Nationally, the gender-neutral marriage law of 2008, the Act on the Prohibition of Discrimination on the grounds of Sexual Orientation, Gender Identity and Gender Expression of 2013, and the 2016 law permitting legal changes of gender with no psychiatric or psychological evaluation required have been milestones in the struggle to change the binary and heteronormative structures embedded in the legal system.
Internationally, the recognition of sexual and gender diversity is manifested in the Yogyakarta Principles of 2006. The Principles are a codification of key LGBTI issues from the UN Human Rights Committee, the European Court of Human Rights, the European Court of Justice, as well as national legal practice in various countries.
These partial national and international victories mean that the LGBTI community has gained legal protection against discrimination. This has led to the expectation that law and practices that use sexual and gender majority individuals as their default will be changed.
Changing laws can be done quickly, but translating them into practice takes time. One thing that the Act on the Prohibition of Discrimination on the grounds of Sexual Orientation, Gender Identity and Gender Expression and the law permitting legal changes of gender have in common is that they were passed quickly because Norwegian legislation did not comply with international commitments to the LGBTI community. Instead of mapping out the legal and practical changes that these laws necessitated, what happened was that individuals, enforcement practices and legislators were left to use the discrimination protections to move the process on.
Taking new look at legal structures based on heteronormativity and binary understandings of gender
In recent years, I have led a research project that looks at what happens when the prohibition against discrimination on the grounds of sexual orientation, gender identity and gender expression comes into conflict with legislation, practices and expectations that build on heteronormativity and a binary understanding of gender. Our findings have been collected in the anthology Frihet, likhet og mangfold: kjønnsidentitet og seksuell orientering i rettslig, medisinsk og samfunnsvitenskapelig kontekst, a book that I have co-edited with Anniken Sørlie, and which will be published by Gyldendal this summer.
By using the situation of people who are transgender and/or belong to sexual minorities as our starting point, our aim is to take a fresh look at the gendered deep structures that unthinkingly assume a default position of being heterosexual and cisgender.
In order to illustrate what is at stake, I will now look at two examples in which the protections against discrimination fall away when faced with the heteronormative gender binary.
When protections against discrimination meet binary understandings of gender
The first example that I will look at concerns the relationship between the Equality and Anti-Discrimination Act, which is built on the principle of gender diversity, and the law permitting legal changes of gender, which is built on a binary understanding of gender.
The preparatory works for the Equality and Anti-Discrimination Act clearly state that:
Society does not only consist of men and women. Gender is more complex than that. Some people experience having a different gender than the one assigned at birth; they have a different gender identity. Others do not identify as either male or female. (Prop. 88L (2012-2013) s. 110.)
The purpose of the law permitting legal changes of gender was to ensure that the gender registered in the national population register would correspond with a person’s own gender identity. However, the law does not allow non-binary people to register as a third category.
We can see here that the law permitting legal changes of gender does not comply with the Equality and Anti-Discrimination Act’s demand that gender diversity should be recognized. As a result of this, the law permitting legal changes of gender leads to differential treatment on the basis of gender identity and gender expression. The preparatory works do not consider whether this differential treatment is substantive, necessary, and proportional. A central question here is whether one should introduce a third gender category into law, or whether one should just stop registering legal gender altogether.
When protections against discrimination meet the welfare state
The other example that I will look at concerns a conflict between the prohibition against discrimination on the grounds of sexual orientation, and the rules regarding parental pay for co-mothers according to the National Insurance Act.
Many co-mothers have been surprised when they discover that the National Insurance Act has a rule that entails that you lose the rights to any remaining parental pay when a new child is born. If this law is taken literally, the consequence is that if two women that are married or registered partners get pregnant in quick succession, the woman who gives birth first will lose her right to parental pay when the other child is born.
This rule shows that the Equality and Anti-Discrimination Act does not always lead to adjustments in the rights that individuals have in the welfare state. The fact that the National Insurance Court dismissed such a case from two co-mothers, which was put forward by Legal Advice For Women (JURK), also shows how difficult it is to appeal against such rules. Even though this particular rule is formally neutral, it constitutes indirect discrimination, because it affects people differently in practice.
Taken together, these two examples show how heteronormativity and binary understandings of gender continue to function as a foundation for many of our laws, practices, and expectations. It is only by inspecting and challenging these deep structures that we will be able to have a protection against discrimination that fully protects the rights of everyone, and not only those who belong to sexual and gender majorities.