Response to interpellation 2022/23:146 on self-determination as a basis for changing legal gender
Translated from Swedish by AI; the translation may contain errors. The Swedish text is the original.
Summary AI, written in advance
The debate concerns self-determination as the basis for changing legal gender. KD argues that the work on new legislation based on self-determination has come a long way 1 and that the starting point is the individual's experience 1 2. KD wants to separate medical interventions from the legal question 2 and wants to improve care through knowledge management and national highly specialized care 3. KD welcomes previous governments' work as a basis 4. MP argues that the Council on Legislation's referral does not imply actual self-determination because an assessment is still proposed 5. MP claims that self-identification is a fundamental aspect of the right to self-determination 6.
Written by AI in advance and may contain errors. The numbers lead to the speech a statement builds on; check against the text below.
Statsrådet Acko Ankarberg Johansson (KD)
Mr. Speaker! I thank the member for the question, which we raised with each other a while ago.
Ulrika Westerlund has asked me if I have abandoned the idea of self-determination/self-identification as the basis for changing legal gender and, if so, what is the reason for that, as well as whether I intend to work for Sweden to have a law similar to the one that exists in, for example, Norway and Denmark or the one that exists in Malta and Argentina.
The work to establish new gender identity legislation that fulfills the requirements for self-determination to a greater extent than the current one has come a long way. The government at the time decided in July 2022 on the referral to the Council on Legislation, Improved opportunities to change gender.
In the referral to the Council on Legislation, it is proposed that two new laws - the Act on certain surgical interventions on the genitals and the Act on changing the gender appearing in the population register - shall replace the current Act on determination of gender in certain cases. The legislative proposals mean that the process for changing the gender appearing in the population register is separated from the process for surgical interventions on the genitals.
In the referral to the Council on Legislation, it is proposed that a person who has reached the age of 16 shall have the gender appearing in the population register changed after a simplified assessment of the gender identity. An application for a child is made by the child's guardian with the child's written consent. An overriding goal is that the procedure for changing the gender appearing in the population register shall be simplified.
The proposals in the Government Offices' referral also lie closer to the legislation that exists in the countries that the interpellor gives examples of.
In the referral to the Council on Legislation, the assessment is made that it is no longer warranted to have such an in-depth examination of gender identity as is conducted today for a person to be able to have a gender established other than that which appears in the population register. A law regulating the establishment of a gender other than that which appears in the population register, for the purpose that persons should be able to live in their gender identity, should, as far as possible, be based on the individual's self-determination and not set up obstacles that are not justified. This is also my and the government's starting point.
The proposals in the Government Offices' referral mean that a change of the gender appearing in the population register shall be preceded by an assessment of gender identity. This assessment is proposed in the Government Offices' referral to be significantly less detailed compared to the assessments made according to the current Gender Recognition Act. The purpose is to reserve the possibility to change the gender appearing in the population register for precisely those individuals who experience that their gender identity does not correspond with the gender appearing in the population register and thus have a need for such a change.
The Council on Legislation has commented on the proposals in the Council on Legislation referral, and the matter is now being processed further in the Government Offices. I do not intend to anticipate the result of this processing.
I want to tell the interpellor already now that if the answer feels familiar from previous interpellation debates, it is because we are currently in an intensive stage of preparing the bill that we will submit to the Riksdag for handling. Since the preparation is ongoing, my answer is somewhat brief.
Ulrika Westerlund (MP)
Mr. Speaker! I thank the Minister for the answer, which has clarified some question marks in this debate, but many remain. I hear what the Minister says about the ongoing preparation and hope that this discussion will be a companion to it.
Since I submitted my interpellation, Finland has also voted through a new gender identity law, which has thus created the situation that Sweden is now alone in the Nordic countries, apart from the Faroe Islands, in not having a gender identity law based on self-determination. That raises questions. What distinguishes us from the other Nordic countries? What is it in the Swedish situation that makes it impossible to carry out such a reform here?
The Minister pointed out in his response that the assessment of gender identity that is also proposed to continue shall be simplified. I naturally welcome this, but it will also not continue to be a question of self-determination or self-identification as a basis, if the bill being presented largely corresponds to the proposal in the Law Council's referral.
Some formulations in the Government's response - that the law "to a greater extent" and "as far as possible" shall be based on self-determination - also show an awareness that it is not a matter of actual self-determination, if one proceeds with the Council of State's proposal.
In the referral to the Council of Legislation that the previous government submitted, it states, regarding the conditions for changing legal gender, that a change of the gender appearing in the population register should be preceded by an assessment of gender identity and that this assessment should be less extensive than that required under current law and, as far as possible, be based on the individual's own perception of themselves.
In the referral to the Council on Legislation, it is also stated, among other things, that by gender identity is meant a person's self-identified gender, that is, their own experience of being a boy or man, girl or woman, or belonging to no gender or some other gender. Here it is worth noting the choice of words "the own experience". That it is impossible for anyone else to conduct an assessment of this is almost self-evident.
The Council on Legislation's referral further states that some in the target group have a need for care while others do not. The latter group will now unfortunately, with this proposal, also continue to be required to utilize healthcare resources to obtain an assessment of gender identity and the experience of one's own gender if they wish to change their legal gender.
The current formulations in the legislative text have created several different types of problems, including that the wording allows for arbitrary interpretations and that doctors' valuable time is spent on a task that is not medically necessary.
In the criteria now proposed in the new law, that is, in the Government Offices' referral, it states that legal gender can be changed if it can be assumed that the person will live in this gender identity for a foreseeable period.
There is also a degree of arbitrariness built in here. And the effects of the requirements in this Council on Legislation referral are that doctors' working hours will continue to be spent on tasks whose sole purpose is to fulfill legal requirements. Furthermore, it is of course still open to interpretation by the responsible authority exactly how this assessment should be made, which will lead to uncertainty and a risk that the authority sets stricter requirements than the legislator perhaps intended. In the long run, this could lead to the difference between the current situation and the upcoming one not being as large as it might be intended.
In this context, I can mention that the authority that today makes these decisions on changed legal gender, for example, requires a psychiatric diagnosis, which is not in the law. But it is an interpretation that the authority has made. The authority that has the responsibility and is proposed to continue to have the responsibility thus has a history of setting more extensive requirements than what the law requires.
I hear what the Minister says regarding the difficulties in addressing this, but I nevertheless yield the floor and hope for a comment.
Statsrådet Acko Ankarberg Johansson (KD)
Mr. Speaker! I thank the member for the question.
It is always problematic if one goes in a different direction than what was intended with the legislation. It is also for that reason that all legislation must be clear and have preparatory works that state where one should go.
We have many experiences of that there are sometimes reasons not to include such clear requirements in the legislation that might need to be changed over time if new facts emerge. Legislation should be difficult to change. It should not be something one can do during a coffee break, but it must take its time. But in some other cases, it is absolutely necessary to be explicit in how one should proceed.
This balancing act is, of course, something that the government is now looking at. In some places, one must be very clear, and in some places, are there reasons not to have this clarity?
The Council on Legislation referral is therefore the material that has been public, and it is prepared within the Government Offices. And in the near future, we will be able to submit a bill to the Riksdag for assessment.
But the views that are coming are essential because what the government means is that we need a new order where we divide the two parts into what is medical, what the individual assesses as being needed in terms of medical interventions, and what is a legal question, that is to say, changing the population register. This change is necessary, and we need to make it.
I also agree with the member that all the time spent waiting for a new law means that healthcare personnel have to expend energy and time that they could use for something else. For this reason, we needed to hurry.
But on the other hand, it must also become a good product. It must be the best proposition that we submit to the Riksdag for assessment. Whether it will be on February 21st or some later date, I will let remain unsaid for now. When the proposition is handed over to the Riksdag, it must nevertheless be as good as possible from the government parties' perspective.
As the member has pointed out, it has taken a very long time before this law arrives. It should have been finished and submitted to the Riksdag several years ago. But now we are where we are, and this government intends to do as well as it can to find a good arrangement that balances all the interests that exist.
I still think it is clear in the government's response today that our starting point is the individual's experience, where I want to make changes, and that it shall become possible through the legal change in the population register. Then we will have to return to how the law will be designed according to the government's proposal.
Ulrika Westerlund (MP)
Mr. Speaker! I take the opportunity to tell a little bit about the history. I am sure that the Minister is well acquainted with it, but I do it anyway.
I go back to the autumn of 2021. At that time, the then government, consisting of Miljöpartiet and Socialdemokraterna, submitted a joint draft for a referral to the Council on Legislation regarding this law. The proposal had been preceded by a long process where several different investigations had been conducted, and consideration had been taken of, for example, objections from the Council on Legislation on a previously submitted proposal in 2018. Therefore, this proposal in the draft contains, among other things, a shorter waiting period for the person who applies for a change of legal gender and also a requirement for approval from an external party if one would wish to change legal gender several times. These control functions have been included for the purpose of reducing the risks of abuse, if persons, for example, wish to change legal gender for completely different reasons than they wish to receive a legal recognition of their gender identity. For example, persons who attempt to evade punishment or perform different types of fraud have been mentioned.
The Minister mentions in his response that the purpose of retaining a review and not transitioning to a system where the change is based entirely on self-identification is precisely what is being attempted to address, to reserve the possibility of changing the gender that appears in the population register for just those individuals who experience that their gender identity does not correspond with the gender that appears in the population register and thus have a need for such a change.
I interpret this as that there are fears that a law based on self-determination will be abused by people completely other than trans people, and that is the reason why there is hesitation and a reluctance to introduce self-determination fully—if this is still the case when we have this discussion today. In that case, one thinks that the control functions that were in the draft of the referral to the Council of Legislation are not sufficient.
I want to mention that there are heavy crime prevention authorities, for example the police, Säpo and Kronofogden, who have said that there are no difficulties in tracking a person and that they therefore see no reason to go against self-determination, as described in the draft.
We can also look at experiences from other countries that have already introduced gender identity laws based on self-determination. Close at hand are Norway and Denmark, which are also usually called our closest neighboring countries culturally. They have had such laws since 2016 and 2014 respectively, and their population registration systems resemble ours.
I asked the Riksdag's investigation service to look at experiences from these countries. They did not find any examples of abuse by criminal persons. On the other hand, there are examples in public debate and in research on various potential and actual problems in the application. Some of them concern the person concerned themselves. This concerns, for example, difficulties in obtaining educational certificates for an education that one attended when they had their previous legal gender, and things that can also affect others, for example, access to changing rooms. However, there are only isolated examples of this having been problems that have arisen, and it has also been handled in different ways through, for example, discrimination cases.
It is possible that situations have arisen that have not come to the public's knowledge. But nothing indicates that it has involved a larger number of incidents and, as said, some incidents involving criminal persons trying to exploit the system.
Several of the mentioned situations are also not due to this specific legislative change, for example the problem with educational certificates. We already have that in Sweden. This problem can occur when one changes legal gender regardless of what criteria are established. It is also not the case that, for example, questions regarding access to gender-segregated spaces, such as in facilities within the correctional services, are entirely determined by the design of the gender identity law.
I found a document from Kriminalvården from 2019 which is a handbook concerning principles for the placement of persons in correctional facilities. There, they have a small section that touches upon trans people. They state, among other things, that legal gender is one of several aspects that Kriminalvården takes into account. But they also take into account the type of crime, current client composition, and so on.
This is also a collateral point that I hope will be taken into account in the further processing.
Statsrådet Acko Ankarberg Johansson (KD)
Mr. Speaker! I thank the member for a substantial elaboration. I understand that the member has better knowledge than I do regarding the work that a couple of previous governments did, that is to say, when Miljöpartiet was part of the government. It is also this draft for a referral to the Council on Legislation that the member refers to.
But what happened next and the reasons for it, I cannot answer at all when it comes to the Council on Legislation referral that we are now working on.
My starting point as minister, however, has been not to have the idea that if anything has been done by a previous government, I throw everything away and start over. I think it is extremely valuable in this matter, in matters of preparedness and in many other matters where I have proposals that are moving forward and which I can proceed with to the Riksdag. I therefore welcome what previous governments have done as a basis, and we proceed from these starting points.
But it is, just as the member says, many questions to consider and evaluate. And I think that what is important when the government eventually submits its bill to the Riksdag is that it appears which considerations have been made and why one has landed on one option or the other, so that it appears exactly how one has evaluated, for example, the questions that the member raises here today.
It is clear that all new legislation has consequences. But I assess that these consequences, just as the member himself highlights, already exist today for people who need to undergo a transition to return to the gender they perceive as the correct one. These problems already exist today with current legislation. We have difficulties with them today, and we need to handle them today. But we will probably need to handle them in the future as well. These are, therefore, things that people encounter and which are very problematic for the individual, but which we, of course, have a mandate to solve.
The second thing I wanted to highlight – and I would indeed like to hear further on the member's views if there is an opportunity – is that what I assess we have left to do, in addition to having the bills submitted to the Riksdag for consideration, is to improve care for persons who need gender-affirming treatment in one way or another.
People need to receive care when they seek help, but the queues are terribly long today. I meet people who cannot even get an appointment for a counselor meeting, and what that means for people seeking care, help, support, and treatment is hardly imaginable. We are ourselves contributing to people getting worse and can even develop other illnesses because of the situation.
The situation we have within Swedish health and medical care is therefore extremely serious, and we need to move forward on many fronts to strengthen the situation and achieve a better supply of competence. It is, of course, also one of the issues that the government will continue to work on alongside the submission of a proposal to the Riksdag for assessment.
Ulrika Westerlund (MP)
Mr. Speaker! I certainly appreciate that consideration is given to what has already been done. This has been ongoing for a very long time; I often point out that the law is as old as I am, namely 50 years. It is, therefore, a very old law - actually the world's oldest in this area. We removed the worst offensive requirements from the law when we removed forced sterilizations, even though many problems remain. But it is actually the world's oldest law in this area.
I would like to conclude by highlighting some other aspects.
In the rather heated public debate about the gender identity law being conducted in Sweden but also in other countries, the opinion has been expressed that such a change in law or laws based on self-identification would mean a transition to a completely new view on what gender is. I would therefore like to point out that we have had a view on gender where gender identity has been the basis for legal gender since 1972, i.e., for 50 years. That was why the gender identity law was introduced. If we had a view on gender where only physical or biological gender would count, we would not have any gender identity law. It is also worth taking with you in the sometimes very aggressive debate.
That it is a fundamental aspect of a person's right to self-determination to receive legal recognition of their gender identity is often highlighted by various human rights organizations, for example Amnesty. This is what the debate is about. It is not about, for example, a denial that biological sex also exists, but the Gender Identity Act is about the recognition of gender identity.
Several different human rights organizations have highlighted the importance of this. I can mention only a few: the UN High Commissioner for Human Rights, the UN independent expert on issues of violence and discrimination based on sexual orientation and gender identity, the Council of Europe Commissioner for Human Rights, and the Parliamentary Assembly of the Council of Europe. All these bodies have highlighted the importance of self-identification as the basis for a gender identity law, and it is time for Sweden to listen to the recommendations from them and fully respect trans people's human rights.
The question of healthcare is also very important. Among other things, in my capacity as convener for the Riksdag's newly started LGBTQI network, I have contacted the National Board of Health and Welfare and requested a presentation for the group regarding what the problems consist of and what should be done.
Statsrådet Acko Ankarberg Johansson (KD)
Mr. Speaker! I thank the member for further information and knowledge.
It is truly necessary that we move forward and reach a decision. At the same time, I meet many who say that it is also not good to rush if it does not turn out correctly. I stand somewhere in between, and I still intend to maintain as high a speed as we can. It feels very heavy, however, that so much time has passed without us having reached a judgment in the Riksdag.
The day the Riksdag receives this on its table, it is the Riksdag that will judge which law we should have moving forward. Regardless of which decision the Riksdag reaches, we must, just as the member says, improve the care. Because it is failing today, and that is primarily due to the fact that we have such long queues to the entire health and medical care. Therefore, we need to increase knowledge on how we create the best care for people who have gender dysphoria and who have these needs. Today, we do not meet them in the best way.
When one comes to healthcare, one should always receive the best care based on the latest known knowledge. It is a question of knowledge management, which we struggle with within the entire healthcare system, and it must be included here. The decision on national highly specialized care, I think, is a good way forward so that we get better knowledge and ensure that one receives the best care according to known expertise and medical science at the place where one seeks and where one arrives.
I look forward to submitting a bill to the Riksdag for consideration as soon as possible. The Government will do its very best to carry out a good preparation based on the referral from the Council on Legislation that we have. It shall be done as well as possible based on all the considerations we need to make.
Source: The Swedish Parliament. The speeches come from the open data of the Riksdag, translated into English by AI, which may contain errors.