Icelanders are learning more details about a new government bill that could improve the rights of trans and intersex people — and some questions are being raised about what’s being left out in the landmark legislation.
GayIceland spoke with Prime Minister Katrín Jakobsdóttir about the bill last month, when she said she hoped the bill would place Iceland at the forefront of defending LGBTI rights. A draft of the bill has since been submitted to public consultation, confirming details about what will be addressed in the bill.
Some of the central elements of the legislation, should it pass through Parliament, include allowing people to change their legal gender marker without having to go through the health care system and changing to an informed consent model for trans people who wish to transition. This is a departure from the outdated diagnostic process for transitioning, which has long been criticized by trans people in Iceland.
However, the bill also leaves out some key points, says Kitty Anderson, the chairperson of Intersex Ísland. Kitty has been involved with consultations about the bill since May 2015, and she says that some elements that were included in earlier drafts of the legislation have since been removed.
“I’m not critical of what is going forward,” Kitty says. “I’m critical of what is being left behind.”
“This would not suffice to fulfill the government coalition promise of putting Iceland at the front of the pack when it comes to LGBTI issues — nowhere close.”
Importantly, Kitty says the original intent of the bill was to also guarantee the right to self-determination, bodily autonomy and physical integrity for intersex people. While the current draft does include the right to self-determination, it only creates a committee to study and establish guidelines around bodily autonomy and physical integrity.
“It’s problematic that there is no end date given for this work to be done,” she says about the change. “In Iceland we sometimes like to say that committees are where issues go to die. And while this is an exaggeration of course, by giving this committee no time frame, this is something that could go on for the next few years. If this legislation isn’t enacted before the next election, then the government will have failed to uphold their government coalition agreement.”
Kitty is referring to the current government’s coalition agreement, which states its intention to fulfill the Parliamentary Assembly of the Council of Europe’s intersex resolution from 2017. That resolution includes explicit reference to protecting intersex children’s bodily autonomy and physical integrity.
Also removed from the bill is an article that called for the mandatory registration of all medical interventions on intersex children, which Kitty said would give important information about the scope of this issue in Iceland.
“We see no good reason at all for removing mandatory registration,” she says. “We already have mandatory registration for various other medical procedures in Iceland.”
This could also become a security issue
While Kitty applauds changes that will allow people to more easily change their legal gender marker, she criticizes the proposed legislation for only permitting people to change their gender marker one time.
“I think for most people that will be sufficient,” she says. “However, there is always the possibility of somebody changing their gender marker from male to female and then a few years later coming to realize that they identify more as non-binary and deciding they would have preferred an ‘X’ marker.”
In addition to being a rights issue, Kitty also says this could also become a security issue. “Let’s say a person decides to move to a country where their gender marker is not recognized — for example, if they have an ‘X’ marker. They might run into issues there,” she says. “Another possibility would be somebody who wants their legal gender recognized here in Iceland, but does not want to have medical treatment to alter their body — which would no longer be a requirement under this new legislation. If they decide to move to a like Russia, for example, then their gender marker won’t necessarily match what authorities in that country believe that somebody with that gender marker should look like.”
Although Kitty admits she isn’t certain about why these elements were removed from the legislation, she says the changes were made after the bill was transferred to the Prime Minister’s Office in January. Kitty says that she and the other people involved with the bill were only notified of the changes a couple days before the legislation was put into public consultation.
“I can only speculate as to why these changes were made,” she says. “It could be a number of possibilities, for example opposition from health care officials or belief that this couldn’t be enacted effectively yet in Iceland.”
Iceland should be more like Malta
Responding to the comments from the Icelandic Prime Minister that this legislation could put Iceland at the forefront of defending LGBTI rights, Kitty says she isn’t convinced. In particular, she says the new bill will do little to increase Iceland’s standing in the ILGA-Europe’s annual Rainbow Europe index, which ranks European countries based on legal rights and protections from LGBTI people.
“It’s not going to shoot us up. We’re not going to get huge recognition for being the front runners of the year,” she says. “We will still be lagging behind the front runners. This would not suffice to fulfill the government coalition promise of putting Iceland at the front of the pack when it comes to LGBTI issues — nowhere close.”
Right now, Malta is the country at the top of the ILGA-Europe’s Rainbow Index, while Iceland has dropped to the 18th place. Kitty says the reason for that comes down to political will to legislate on the part of Maltese politicians.
“Just a few years ago, Malta was close to the bottom of the rankings,” Kitty points out. “And then a government came into power that had political will to legislate and change. That’s what it’s about. If Malta can affect this much legal change in such a short time, there’s no reason why Iceland cannot.”
“It is quite clear that the government is aiming to advance drastically. However, reaching the first position would require more legal change, policy change, action plans and constitutional change.”
Despite the shortcomings of this new legislation, Kitty stills says it’s a “great bill.” She says she’s optimistic this government will continue legislating advances for LGBTI rights in the near future.
“The government is definitely not shying away from active participation of the people involved,” she says, referring to the fact that Intersex Ísland is included in the committee that will study guidelines around bodily autonomy and physical integrity for intersex children. “It would be great to see a reversal of some of the changes, but this current government has done more to advance LGBTI issues in Iceland than any other government since 2012.”
“It is quite clear that the government is aiming to advance drastically,” she adds. “However, reaching the first position would require more legal change, policy change, action plans and constitutional change. Iceland is a small country, so change is potentially easier than in many other places. When it comes to human rights, we should not be reacting to the fact that other countries are advancing ahead of us. We should always be looking for what we can do to be a step ahead, because we should be setting an example and not playing catch-up.”