Abstract:
There is a significant gap in Middle Eastern and North African (MENA) legal scholarship regarding legal gender recognition, which leads to a lack of understanding regarding how this issue is addressed by law and policy in the region. This study is overcoming this gap by providing the first comprehensive analysis of case law on legal gender recognition in the MENA region. The author investigates the human right of legal gender recognition for transgender individuals by analysing 22 judgments, encompassing 19 cases in 10 MENA countries. The aim is to establish a unified framework of legal arguments used in these judgments in support of and against granting legal gender recognition. Given the absence of legislation explicitly addressing legal gender recognition in the MENA region, civil status courts typically handle requests for legal gender recognition. Changing one’s name and sex in civil registry entries is considered a civil status issue, and religious references, such as Islamic Sharia, are used as a guiding reference for judges when adjudicating cases where no specific law exists, such as legal gender recognition. Islamic scholars do not view transgender individuals as entitled to gender-affirming healthcare and subsequent legal gender recognition, as they believe it is only a mental disorder and not a biological illness. Therefore, transgender individuals are not considered to have the medical necessity required to justify an exception to the prohibition on altering Allah’s creation. This, combined with other legal arguments related to morality, the validity of gender identity disorder, and family status, has led to the majority of cases (14 out of 19) resulting in unfavourable outcomes. Meanwhile, only four cases have had favourable outcomes, based on legal arguments that support a pathologisation narrative, recognising gender identity disorder as a valid reason for undergoing gender-affirming healthcare and subsequent legal gender recognition. Thus, it is evident that the right to legal gender recognition for transgender people is still absent in the region. This study aims to initiate a legal discourse within the legal community in the region regarding strategies for future legal advocacy. This discourse aims to bring about reforms in judicial positions on the issue and promote enhanced recognition of transgender individuals.
