The Albanian draft-law on Gender Identity Recognition that “sleeps” in the drawer

*This article is part of “TransMagazine”, the online magazine dedicated to the Transgender community in Albania.

In the Albanian legislative reality, the inclusion of gender identity and its components within the framework of a correct legal basis and which enables the realization of fundamental rights for transgender individuals, is absent. Only in 2013, Arta Mandro and Aurela Anastasi, two legal experts, drafted a draft-law on recognizing gender identity, with the support of the Council of Europe. The prepared draft is grounded on the principle of equality and non-discrimination, basis¹ for the Constitution of the Republic of Albania and other international instruments ratified by our country.

In the preamble of the Constitution of the Republic of Albania, the guarantee of human rights and fundamental freedoms, and commitment to the protection of human dignity and personality are underlined. According to Article 3, among others, human dignity, human rights, and freedoms are the basis of the state, which has the duty to respect and protect them.

In the Albanian judicial order, the protocols of the European Convention on Human Rights regarding the level of limitation of these rights prevail over domestic laws and are recognized at a constitutional level². Article 8 of the Convention guarantees the respect for private and family life, while Article 14 sanctions the prohibition of discrimination. It is an indisputable part of the positive obligations of our state to guarantee the existence of appropriate legislation for the protection of these fundamental rights and freedoms.

In 2015, the Committee of Ministers of the Council of Europe comes with a recommendation³ on measures in the fight against discrimination due to sexual orientation or gender identity. This Recommendation instructs the Member States to take the necessary measures to ensure full legal recognition of a person’s gender transition, affecting all areas of life and, in particular, enabling the change of name and gender mark in official documents in a fast, transparent and accessible way.

The UN Convention on the Rights of the Child, an instrument ratified by Albania a few years ago, stresses the respect for the identity of children indiscriminately and emphasizes the positive obligation of the state to take all measures so that every child is effectively protected from all forms of discrimination or punishment for an exhaustive list of causes, including their current position, whether social or legal.

In an ambiguous position, stands the Law “On Civil Status” ⁴, currently in force (in vigorem) in the Republic of Albania. In section 6/1⁵ of the law, gender is listed as one of the civil status components of individuals and as such as part of each person’s identity. According to Article 8⁶ of the Law on Civil Status, gender is a component that may change, but meanwhile, according to the law, it is ascertained that there are no gender-related adjustments, which are entirely lacking in the Albanian legal context. The “gender” component, according to the Law “On Civil Status”, is an integral part of the act of birth and as predicted in Article 44⁷, a possibility of changing the data of the act of birth is in fact possible. However, we are faced with a vacatio legis, as this law does not mention a procedure for gender marker change.

Based on this legal basis, we can conclude that the Law “On Civil Status” in a narrow context creates the possibility of realizing the recognition of the changed gender identity and what is missing is a lex specialis or some incorporated amendments in the Law “On Civil Status”.

The purpose of the 2013 Draft Law on “Recognition of Gender Identity” is to provide an adequate legal procedure through which transgender people realize the recognition of their gender identity and be provided with a personal certificate and any other official documentation, which accurately reflects the gender identity stated by the person directly concerned. Thus, transgender individuals will have, as an integral part of every document, their accurate gender identity. It is worth pointing out that even if the law on “Recognition of gender identity” comes into force, intervention and improvement will be needed in some other applicable laws so that transgender individuals can realize all their rights.

Statistics show that the discrepancies between the gender identity reflected in the official documents and the factual situation of transgender persons result in discrimination, excitement and persecution, and even violence with a focus on their Gender Identity.

Currently, ambiguity, controversy and lack of legislation, which result in the inability to recognize gender identity on any legal basis for transgender people, can be considered absolutely as an open violation of human rights and fundamental freedoms.

References:

• [1] Recommended Principles and Guidelines on Human Rights and Human Trafficking; p. 24; United Nations Publications; UN; 2010.
• [2]“Restrictions on the rights and freedoms provided for in this Constitution may only be imposed by law for a public interest or for the protection of the rights of others, the restriction shall be commensurate with the situation that dictated it. These restrictions should not violate the essence of the freedoms and rights and in no case may exceed the limits set forth in the European Convention on Human Rights.

• [3]Recommendation [CM / Rec] of the Committee of Ministers to Member States on measures to combat discrimination due to sexual orientation or gender identity; 2010.

• [4] Law no.10 129 / 11.5.2009, “On Civil Status”, amended in 2013.

• [5]“The components and features of the civil status of citizens: 1. The components of the civil status are: first and last name, identity number, date of birth, birthplace, sex, citizenship, paternity and maternity affairs, civil status, nationality, 3. The constituent elements in civil status service documents have priority over the same elements of any other state or private act and are compulsory to be respected. “

• [6]“The features of some of the constituents of the registrar: Birth, gender, name and surname, paternity, maternity and nationality reports are known and can be removed, extinguished, changed or passed to others only in the cases and in the prescribed manner expressly in this law or in any other special law “.

• [7]”Change of birth certificate: The content of the act of birth, as reflected in the National Register, may be changed only in the cases expressly provided for in this Law.”

Columnist: Dea Nini