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Mandatory Surgery: Supreme Court Reprimands Ministry | Austria

In a sensationally speedy decision the Austrian Administrative Supreme Court quashed as unlawful a decision by the Ministry of Interior, which – despite constant case-law to the contrary – required a transsexual woman to remove her genitals. Rechtskomitee LAMBDA (RKL), Austria’s civil rights organisation for homo- and bisexual as well as transgender women and men, calls for the misuse of power committed in the Ministry of Interior to lead to consequences.

Last year the Administrative Supreme Court repeatedly found mandatory surgery as required by the Ministry of Interior against the law (VwGH 27.02.2009, 2008/17/0054; VwGH 15.09.2009, 2008/06/0032; now similarly the Constitutional Court: VfGH 03.12.2009, B 1973/08).

The Ministry of Interior however insisted on mandatory surgery and again refused recognition in her new gender to the transsexual woman who has won the two cases in the Administrative Supreme Court. It did so again solely on the ground that she still has male genitals and despite the fact that the law obliges the Ministry to implement the judgments of the Administrative Supreme Court.

The woman had again to file complaints to the Administrative Supreme Court and to the Constitutional Court. In a record-breaking speedy judgment (only two months after filing of the complaints) the Administrative Supreme Court reprimanded the Ministry of Interior.

Court points to binding effect

In its judgment of 17 February it is recalling its constant case-law which found mandatory surgery against the law and to the binding effect of its judgments. The only decisive factors are that the applicant is transsexual and that she has been living and working in the appearance of a woman for years (VwGH 17.02.2010, 2009/17/0263).

The applicant was born as male and, after hormone therapies and cosmetic measures, has been living for long time now as a woman. Nevertheless authorities are refusing a female first name and documents which correspond to her gender identity and her physical appearance. Every time she has to show one of her documents (driver’s license, id-card, passport, residential registration form, birth certificate etc.) she has to expose her transsexuality and is coerced into (embarrassing and often degrading) outing.

The only reason for refusing a female first name and gender-identity-corresponding documents is that she has not undergone surgery to remove her genitals.

Like an illegal immigrant within her own country

The applicant however can not engage in such an operation as she certainly would loose her job as a result of longstanding sickness absence following the surgery. The loss of her work would expose her to the eminent risk of social disintegration and pauperization.

The resistance the Ministry of Interior exerted against the case-law of the Administrative Supreme Court was arbitrary and coerced the woman to again address the high courts, which is not only costly but also subjects her to continued degrading discrepancy between her real gender and her legal gender. Each time she faces police-officers she turns to the other side of the road in fear of degrading police controls: like an illegal immigrant, in her own country.

Prosecution: officers did not know what they have done

The woman reported the misuse of power committed in the Ministry of Interior to the State Prosecutor Office for Corruption Offences, which however has dropped the case immediately. The officers would not have been aware that they misused their power. The Prosecutor Office has not even interrogated the officers or engaged any other investigations. The victim applied to the court. The Regional Court for Criminal Affairs of Vienna now has to decide whether the Prosecutor Office has to initiate investigations or not.

“The Ministry of Interior must now speedily recognize the new gender of my client“, says Dr. Helmut Graupner, president of Rechtskomitee LAMBDA (RKL) and counsel of the applicant, “and the perpetrators in the Ministry of Interior must be held liable for their flagrant misuse of power”.

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