In recent years, the fundamental rights of LGBTIQ+ persons have received increased legal attention at the international and national level. Considerable legal progress has been made in a short period of time, even though at the same time a divergent trend is occurring in several countries around the world.
The Right to Personal Autonomy Regarding Sex, Gender and Sexual Orientation investigates whether a legal framework based on (the recognition of a right to) personal autonomy regarding sex (characteristics), gender (identity/expression) and sexual orientation could still enhance the legal status of LGBTIQ+ persons. To this end, it makes use of the Belgian legal order as an illustration of a Western national legal system that is responsive to human rights claims of sexual minorities, but remains anchored in heteronormative stereotypes.

The author not only addresses the question to what extent the present legal framework recognises, protects and fulfils the rights of sexual minorities, but also how potential gaps in legal protection could be tackled. Specific attention is given to the role and value of the constitutional entrenchment of a right to personal autonomy over one’s sexual identity in advancing the inclusion of LGBTIQ+ persons in law.

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Inhoudsopgave:

Chapter I. Introduction; 1 Setting the Stage: Researching the Legal Status of LGBTIQ+ Persons in Belgium; A The Social and Legal Position of LGB+ Persons in Belgium; B The Social and Legal Position of Transgender Persons in Belgium; C The Social and Legal Position of Persons with Variations of Sex Characteristics in Belgium; 2 Objectives and Limits; A Objectives and General Design; B Focus on Sexual Minorities; 3 Methodology; A Belgium as Illustration of a Stereotyped Legal System; B Qualitative Literature Study; I Cross-Disciplinary Literature Review; II Legal Literature Review; C Analytic Tools: Personal Autonomy and Inclusiveness; I Personal Autonomy; II Inclusiveness; D Methodological Challenges; I Shifting and ‘Emerging’ Human Rights Standards; II Terminology; 4 Structure of the Book; Chapter II. Terminology and Framework; 1 Sex (characteristics), Sexual Orientation and Gender Identity/Expression; A Sex – Intersex/DSD – Variations of Sex Characteristics; I Sex; II Intersex/DSD/Variations of Sex Characteristics – Binary Normativity; B Sexual Orientation – Heteronormativity; I Sexual Orientation; II Heteronormativity; C Gender (Identity) – Gender Expression – Cisnormativity; I Transgender/Trans/Trans*; II Cisgender; D Conflation between Sex, Sexual Orientation and Gender (Identity); 2 LGBTIQ+; Chapter III. The Legal Status of Persons with Variations of Sex Characteristics; 1 Sex-Assigning/Normalizing Treatment of Persons with Variations of Sex Characteristics; A Informed Consent to Medical Treatment in Belgian Law; I Minor Patients’ Rights; B Evaluation of the Belgian Legal Framework; I Informed Consent to Sex-Assigning/Normalizing Treatment and Personal Autonomy; II International and European Calls for Ban on Non-Consensual Sex-Assigning/Normalizing Treatment; III Malta, Portugal and Germany: Legislative Alternatives; C Conclusion; I Future Legislation; II Impact on Official Sex Registration; 2 Official Registration of Sex; A The Belgian Civil Code; I Official Sex Registration at Birth; II Correction/Change of Sex Registration; B Evaluation of the Belgian Official Sex Registration; I General Characteristics of the Belgian Official Sex Registration; II Medical Registration of Sex; III Binary Sex Normativity; C Conclusion; Chapter IV. The Legal Status of Transgender Persons; 1 The Legal Recognition of Gender (Identity); A Sex/Gender Registration in Belgian Law; I Sex/Gender Registration at Birth; II The 2007 Act on Transsexuality; III The 2017 Gender Recognition Act; B Evaluation of the Belgian Gender Registration Framework; I The Right to (Legal Recognition of) Gender (Identity) and Personal Autonomy; II Depathologization of Transgender Persons; III Cisnormativity – Conflation Between Sex and Gender (Identity); IV Binary Normativity; 2 Rationale, Pertinence and Proportionality of Gender (Identity) Registration; A Identification on the Basis of Registered Gender (Identity); B Other Government Processes Based on Registered Gender (Identity); I Public Registration of Gender (Identity); II Compulsory Registration of Gender (Identity); III The Need for ‘Interim Measures’; IV Summary; 3 Conclusion; Chapter V. The Right to Personal Autonomy Regarding Sex (Characteristics), Gender (Identity and/or Expression) and Sexual Orientation; 1 The Role of Constitutional Fundamental Rights; A The Role of Fundamental Rights; I The Importance of Fundamental Rights; II Criteria for Creating New Fundamental Rights; B The Role of Constitutions and Constitutional Rights; I Symbolism; II Pragmatism; 2 Why a Right to Autonomy?; A The Emancipatory Function of Autonomy; B Autonomy vs. Equality; 3 Formulation and Scope of the Right to Personal Autonomy Regarding Sexual Identity; A Material Scope; I Continued Legal Relevance of Sexual Orientation; II Heteronormativity – Homonormativity; B Absolute vs. Relative Right; C The State’s Negative Obligations; D The State’s Positive Obligations; E Personal Scope; I (Inclusive) Universality of Human Rights; II Application to (Cisgender) Women and Feminist Critiques; 4 Conclusion; Chapter VI. General Conclusion; 1 Conclusions of the Research; A The Necessity of a Correct Conceptual Understanding of Sexual Identity; B The Belgian Legal System Fails to Fully Protect the Right to Personal Autonomy of Persons with Variations of Sex Characteristics; I Sex-Assigning/Normalizing Treatment of Persons with Variations of Sex Characteristics; II Official Sex Registration; C The Belgian Legal System Fails to Fully Protect the Right to Personal Autonomy of Transgender Persons; D Towards the Constitutional Protection of the Right to Personal Autonomy Regarding Sex (Characteristics), Gender (Identity/ Expression) and Sexual Orientation; 2 Suggestion for Further Research; Bibliography