Abstract
Sweden was the first country in the world to allow a person to legally change gender in 1972. At the same time, the requirements under the 1972 act for changing gender included being unmarried, a Swedish citizen and infertile. The latter in most cases entailed sterilization surgery, a requirement in place until 2013. A trend can be detected in the Swedish legal system during the period from 1972 to 2013 to a greater focus on individual rights generally, as well as specific attention being given to the legal parameters affecting trans persons. The current law has been amended to a certain degree, such as the removal of the requirement of infertility, but the lawmaker has retained several controversial aspects, the social security numbering system disclosing sex (and age), as well as a gendered concept of legal parenthood based on a mother and a father. New legislative inquiries have been called for with respect to trans issues entailing that Swedish law can be seen as still in a period of flux as to fully recognizing needs and achieving trans legal solutions.
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Notes
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- 2.
This skepticism with respect to individual rights can perhaps be seen most clearly with the Swedish treatment of the ECHR. Sweden was an original member of the Council of Europe and signed the ECHR already in 1951. The Swedish legislative investigation at that time determined that the ECHR would be applicable only to conflicts between private parties (and not public institutions or law), thus significantly limiting (wrongly) the scope of the ECHR. Sweden did not sign the protocol granting the European Court of Human Rights, having the mandate to interpret the ECHR, jurisdiction over Sweden until 1966. However, under the requirements of dualism, the ECHR did not become Swedish law until 1994, effective 1998.
- 3.
See Ludvigsson et al. (2009), pp. 659–667. The Swedish Lutheran Church had kept the population records from 1686 until the Tax Agency took over this task in 1991.
- 4.
Legislative Inquiry SOU 1968:28, Intersexuellas könstillhörighet, pp. 33–34.
- 5.
See Wålinder (1967).
- 6.
See Kommissionen mot antiziganism (2015), p. 28.
- 7.
Legislative Bill Prop. 1972:6, Kungl. Maj:ts proposition med förslag till lag om fastställande av könstillhörighet i vissa fall, m.m., p. 3. For a discourse analysis in Swedish of the different legislative forced sterilizations, see Magnusson, K. 2013. Tvånget och autonomin: En diskursanalytisk undersökning av sterilisering som villkor i svensk lagstiftning, unpublished Master Thesis, Lund University Faculty of Law. Magnusson identifies four different discourses with respect to the various state-enforced sterilization requirements: eugenics (optimizing the fabric of the Swedish people), who should be allowed to start a family (object) from societal perspectives (subject), respectability as a class issue, and heterosexuality as the norm.
- 8.
A similar inquiry and compensation program were created with respect to the estimated at least 250,000 children removed from their homes during the period from 1920 to 1995, see Legislative Inquiry SOU 2009:99, Vanvård i social barnavård under 1900-talet, p. 43 and Legislative Inquiry SOU 2011:9, Barnen som samhället svek. A 2012 act on compensation in the lump sum of SEK 250,000 to the children neglected in social care between 1920 and 1980 was adopted (lag 2012:663 om ersättning på grund av övergrepp eller försummelser i samhällsvården av barn och unga i vissa fall). Such damage claims had to be made within two years, by December 2014. More than half of the 4000 individuals applying for compensation under this system have been denied by the Compensation Board (Ersättningsnämnden) whose decisions could not be appealed, see Lundström, T. 2016. Staten lovade 250.000 kronor till vanvårdade – mer än hälften fick ingenting. SvT Nyheter, 17 May.
- 9.
This can also be seen as a response to European requirements, such as for example the 2002 judgment of the European Court of Human Rights in Goodwin v United Kingdom [2002] 35 EHRR 18, holding that the UK’s failure to offer the petitioner an amended birth certificate violated her right to private life under Article 8 ECHR. This holding by the Court can be seen as heralding greater efforts both on the international and European levels as to gender recognition and protection.
- 10.
See Commissioner for Human Rights (2009), pp. 18–19.
- 11.
For more information on the Yogyakarta Principles, see the website yogyakartaprinciples.org. Accessed 6 July 2020.
- 12.
See RÅ 2009 ref. 55.
- 13.
See citing Stockholm Administrative Court of Appeals, Socialstyrelsen v. NN, Case no. 1968-12 (19 December 2012), pp. 5–6. This translation is taken from Garland, pp. 161–162.
- 14.
Legislative Inquiry SOU 2014:91, Juridiskt kön och medicinsk könskorrigering (Legal gender and medical gender reassignment) with an English summary.
- 15.
Legislative Inquiry SOU 2015:103. Ett utvidgat straffrättsligt skydd för trans personer m.m. (An expanded criminally sanctioned protection for trans persons) with a summary in English. This inquiry also removed the word “race” from much of the Swedish legislation despite the title of the inquiry dealing with transgender.
- 16.
Legislative Inquiry SOU 2017:92, Trans personer i Sverige - Förslag för stärkt ställning och bättre levnadsvillkor with an English summary.
- 17.
Folkhälsomyndigheten (2105) Hälsan och hälsans bestämningsfaktorer för trans personer.
- 18.
After amendments to the Marriage Code in 2009. Civil status in Sweden historically as mentioned above was under the authority of the government agency, the Swedish National Lutheran Church, which was also in charge of the national population register generally, tracking births, sex, residence, nationality and civil status. Freedom of religion was first legislated in Sweden in 1951. The National Lutheran Church, part of the Swedish state since the sixteenth century, was separated from the state by law in 2000 and then ceased to be recognized as a state administrative agency.
The right to a church marriage ceremony between a man and a woman was first enacted by law in 1686 and became obligatory in 1734. Civil marriage ceremonies instead of a church ceremony were first allowed in 1863 in those cases were one of the spouses was Jewish. A general right to civil marriage ceremonies was legislated in 1908. The right for priests of religions other than those of the Swedish Lutheran Church to conduct marriage ceremonies was created in 1951. The majority of marriage ceremonies today are still conducted by priests of the Swedish Lutheran Church (54%). When the Marriage Code was amended in 2009 to include homosexual couples, one of the compromises reached within the church and with the legislature was that individual priests could refuse to marry a couple based on grounds of conscience.
- 19.
See RÅ 2009 ref. 55.
- 20.
See Wikén, J. 2017. 11 000 har påhittade födelsedagar – personnumren räcker inte till. Metro, April 10.
- 21.
An English translation of the 2008 Discrimination Act is available at the website of the Equality Ombudsman at do.se.
- 22.
ILGA Europe. 2020. Rainbow Europe 2020. Https://www.ilga-europe.org/rainboweurope/2020. Accessed 6 July 2020.
- 23.
Gilden (2013), p. 121.
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Carlson, L. (2021). The Paradox of Trans Law in Sweden. In: Jaramillo, I.C., Carlson, L. (eds) Trans Rights and Wrongs. Ius Comparatum - Global Studies in Comparative Law, vol 54. Springer, Cham. https://doi.org/10.1007/978-3-030-68494-5_23
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