Trying to be legally gender-neutral in Sweden

In the end of 2018, German legislation was changed in order to accommodate for a third legal gender. There as been the option of leaving the gender marker blank, but this was only for newborns and it was thought to be a temporary solution until the person would eventually go for either female or male gender marker. But this time, the legislation allows for a permanent third option, besides leaving the field blank. The new option is called divers, indicating that the so-called third gender is not one new gender, but a set of diverse gender affiliations. Divers, here, is an umbrella term.

In early 2019 I went through the process of changing the legal gender marker to divers, and a few months later, in April 2019 I held in my hands an updated birth certificate, with the gender marker now indicating divers. My updated passport was issued one month later where I received the gender marker X. This is in accordance with other countries and regions that have already introduced an option besides F and M, such as New Zealand, Australia, Canada, Malta or Argentinia.

Bringing Divers(ity) to Sweden

Being registered as permanent resident in Sweden, I wanted to give the local authorities notice of changes in my personal information. On 30 May 2019, I visited Skatteverket in Malmö. Skatteverket translates as Swedish Tax Agency and it is them who deal with matters of population registration. It is also Skatteverket who issues personal identification numbers, or personnummer in Swedish, to everyone residing in Sweden. The number is made up of 10 digits (see Wikipedia on Personal Identity Number), and the penultimate digit indicates gender, that is, the digit is even for women and odd for men. So, a person, by this definition, is either a woman or a man. The same is true for legal gender in Sweden in general: two legal genders exist, and it’s either the one or the other. It’s never both and it’s never blank.

This is what is called “mandatory binary genderism”. It’s genderism because gender is made relevant (although there’s no convincing reason to do so); it’s binary because there are two options; and it’s mandatory because there is no option to say “no thanks”, although there are ways to request the other gender.

So how would Skatteverket do or what would they reply to my request to change my personal details according to my birth certificate and passport? When one country or regions maintains two legal genders and another country of region maintains more than two, there’s a clash of juridical culture.

I sent a quick informal inquiry to Skatteverket via Twitter, asking what will happen – in terms of population registration – if a person with gender marker ‘X’ settles in Sweden and how their gender will be coded into the personal identification number.

Skatteverket promptly replied. The next day I received a tweet saying that “In Sweden, only man and woman are the only legally approved genders. In practice, the person may choose their gender in the context of population registration.

It was a breeze to see that Skatteverket is active on Twitter, that they replied so quickly and that they actually had a good reply. So, in practice, I would be able to choose between odd or even number as penultimate digit in my personal identification number. But a third option does not seem to exist.

On 10 September 2019, Skatteverket officially replied to my request to update my personal information regarding the new gender marker ‘X’. Rather expectedly, they declined, with the same reasoning as above: The Swedish legal system only has two genders, woman and man, and thus that it is not possible to register any legal gender other than these. The reply from Skatteverket in its full length is available here: 20190910_beslut_Redacted.pdfI chose to appeal this decision. Why did I choose to appeal this decision? In essence, I believe that gender is something intimate and private, pretty much like genitals are intimate and private, that is, I don’t show them around. Gender markers should not be on IDs or passports at all. Gender should not be used in determining someone’s identity and it should not be listed on birth certificates, because gender can change, just like appearances and names can change. Most importantly, cruel things do happen when the description is taken as a prescription: Genital mutilations for the sake of gender conformity are reality.

While I do believe that legal registration is better off without any reference to gender, having three options for gender is still better than two, because it opens up for a discussion and creates visibility. Being able to perceive diversity is the first step of letting go of it, of letting it be.

Skatteverket’s decision not to register my gender marker correctly and not to issue a neutral personal identity number violates the freedom of movement within the Union assured in Article 21 (1) Treaty of the Functioning of the European Union, which reads:

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

Freedom of movement of Union citizens should be assured. While I, as a body, am free to roam around Germany and Sweden, as soon as I register in Sweden, I’m stripped off my legal gender. Gender is, de jure, part of who I am. This is what is meant when I say that Skatteverket’s decision goes against the principle of free movement of Union citizens.

Their decision also violates Article 8 of the European Convention on Human Rights (PDF of the full Convention found here), on one’s right to respect for private and family life. “Private life” here is being broadly interpreted to include sexual orientation or the way I dress in public. A public authority cannot tell me what sexual orientation I shall have, so neither can any Swedish authority tell me what gender marker I should receive. According to the Twitter exchange mentioned above, Skatteverket, in practice, lets me choose between female and male coded personal identification numbers and gender markers, which is nice. But either way, it’s not correct.

Skatteverket’s decision also conflicts with Article 21.1 of the Charter of Fundamental Rights of the European Union on non-discrimination. The article, in its entirety, reads:

Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

The gender marker ‘X’ in my passport is listed in the field ‘sex’. Not integrating this piece of personal information into the Swedish population registry is a breach of this article. Why? Had I changed my gender marker to F or M and reported the change to Swedish authorities, they would have accepted it, no doubt. Persons with gender marker ‘X’ are treated differently, in other words, they are being discriminated against. On what grounds? On grounds of my legal gender or sex, which is prohibited by virtue of the Charter of Fundamendal Rights.

I merely tried to rectify my personal data in the population registry, but I was denied to do so. This means that I’m confined to requesting Swedish ID documents with incorrect personal data. And this is contrary to the very purpose of population registration: that registered personal data be correct.

The Appeal

In search for help I wrote a bunch of emails to relevant organisations. Eventually, the RFSL – Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights – showed interest in the case. The RFSL has done tremendous activism and is the largest organisation for the rights of queer people in Sweden. I was introduced to Folkets Juristbyrå (folketsjuristbyra.se), a law firm. But not just a law firm, it happens to be the first law firm in Sweden focussing on the needs of queer clients, which I find extremely awesome. I talked to lawyer Silas Aliki, and we soon agreed to work together. Silas did an excellent job in providing me with information, in coming up with ideas and arguments for the appeal (most of the EU-law related stuff in the paragraph above stemmed from Silas’ brain) and in just being a nice, respecful person.

Silas compiled a statement of objection and an appeal to Förvaltningsrätten i Malmö (the administrative court in Malmö). In the appeal the complainant (Mio = me) seeks

(a) that the decision by the Skatteverket be annulled and adjusted,
(b) that Mio be assigned a gender neutral personal identity number, as well as,
(c) that Mio be registered in the population registry with their gender marker X/diverse in accordance with their passport.

The argumentation was in essence the same as I wrote about above; that the decision was contrairy to EU-law. The full appeal is available here in Swedish and here in my own English translation.

The appeal was filed to the Administrative Court in Malmö in September 2019 and supplemented in November 2019. The court came back six months later, in May 2020, dismissing the appeal. The court argued, firstly, that it is doubtful whether the discriminatory ground gender/sex as viewed in EU-law (Article 21.1 of the Charter of Fundameltal Rights) also includes a further definition of gender identity. That is, in the court’s view, the gender marker X belongs to a different category than F or M. But even if this were the case, the court states, Sweden would be obliged to introduce a new legal institute that includes gender identities beyond female and male, and such an obligation – they argue – cannot be imposed to the Member States by virtue of EU-law.

The court argues, secondly, that the directives in the Charter do not mean extending the scope of EU-law according to Article 51.2 of the Charter of Fundamental Rights. This article states that Member states shall respect the rights, observe the principles and promote the application of Union law in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. This means that, again, forcing Sweden to introduce a new legal institution would exceed the EU’s authority and enter an area of the Member States’ national competence, and that, therefore, the introduction of gender marker X into the population registry cannot forced upon Sweden, so to speak.

And thirdly, the court argues that there are currently relatively few countries that have introduced the gender identity X and there is no international tendency to legally recognise a third legal gender in such way that the Swedish Tax Agency’s decision would conflict with Article 8 of the European Convention of Human Rights. In other words, since gender marker X is not very common in the regions throughout the world, it’s okay for Sweden to also withhold permission for an individual to register with that gender marker.

Regarding the fact that my personal data in the Swedish registry is outdated, the court argues that information in the population registry does not per se have any legal effects on the individual.

In the first instance, it’s kind of unlikely that such a matter gets approved. One can read between the lines that the court did everything to refuse the appeal, while still trying to weigh the arguments in a fair way – a double bind. With that third argument though – gender marker X not (yet!) being very common among regions in the world – interestingly, the court opened up for a future turn to come: “The Administrative Court therefore finds that for the time being there is no international tendency to legally recognise a third legal gender in such way that the Swedish Tax Agency’s decision would conflict with article 8 European Convention of Human Rights. This assessment may however change in parallel with societal development” (own emphasis).

Re-Appeal

Since the Administrative Court in Malmö dismissed the appeal, next up was the Administrative Court of Appeal in Gothenburg (sv: Kammarrätten i Göteborg). The appeal was filed in June 2020 and supplemented in August 2020. In the appeal, we requested the court to seek a preliminary ruling from the EU-court. The court came back barely one month later in September 2020 saying that they do not grant leave to appeal. This means that the appeal remained  unexamined by the court. It’s neither a approval nor a dismissal. All the court said was that the ruling from the previous instance remains fixed. The court also declined to seek a preliminary ruling from the EU-court. The documents can be found in the end of this article.

Next up was the Supreme Administrative Court in Stockholm (sv: Högsta Förvaltningsdomstolen i Stockholm). The appeal was filed in October 2020. Seven months later, in May 2021, the court came back with the same non-ruling as above, declaring that leave to appeal is not granted. This was the final decision of a court in Sweden. This decision cannot be appealed against.

Finally

It’s an issue that authorities will have to deal with more and more in the upcoming years, as the number of regions with three or more legal genders is growing.

It’s actually a super simple matter. Imagine you’re born on the 29th February (if you are, congratulations!) and imagine that in Sweden this date doesn’t exist, because, for whatever reason, Sweden decided to introduce the 0th of March instead for leap years. So you move to Sweden, register as a resident and get told “sorry, we can’t register your birth date correctly, because legal stuff.” – “Well,” you say, “not that it really matters to me, but now my passport and your population registry say different things about my person.” Yep.

For most practical purposes, it doesn’t matter what the gender marker says. I still breathe air, I still drink water. But, for god’s sake, let’s be consistent with personal data! Consitency of identity for the purpose of identification is why a country or region does stuff like population registration.

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