Strategic Litigation Alert: Transgender Right to Health
Cairo 52 Legal Research Institute lodged a strategic litigation petition with Alexandria’s Administrative Court on 17/07/2023 on the right to access health care for transgender individuals.
- Summary of the Case:
The plaintiff is a transwoman who has demonstrated signs of gender dysphoria since childhood. In 2010, she started psychotherapy to find answers to her identity. She later received an official “gender identity disorder” diagnosis. She applied for official permission from the “sex correction committee” at the Medical Syndicate to undergo gender-affirming health care in 2014. Still, the committee has been negligible and has not examined her application. She has not received an official reply on her case to this day. Thus, we have lodged a petition against the Ministry of Health, the Medical Syndicate, and the Head of the Sex Correction Committee to demand that she is to be allowed access to gender-affirming health care urgently.
- Summary of Arguments:
The plaintiff’s case is valid from an Islamic law perspective as she does not violate Islamic law. The Fiqh rule of necessities allows what is otherwise forbidden to be applicable here. The plaintiff has a medical condition constitutes a necessity, so her undergoing gender-affirming health care does not violate the Islamic ban on “unwarranted change of Allah’s creation,” as she has a medical condition that makes such change a necessity.
From civil law perspective, firstly, we argue that not granting the plaintiff’s approval constitutes a violation of the constitutional right to access health which is enshrined in Article 18 of the Egyptian constitution. Furthermore, denying medical services to our plaintiff constitutes another violation of international human rights treaties that Egypt is a treaty member of such in Article 25 of the Universal Declaration of Human Rights (UDHR) and Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Secondly, transgender people’s only avenue to access health is through the sex correction committee, which has no clear criteria, mechanisms, bylaws, or regulations governing its work. The committee does not meet regularly, and its decisions are arbitrary and not legally binding, as it is a professional entity, not an executive one. Our plaintiff’s case is not unique, as the committee has systematically failed to provide timely decisions to transgender applicants, which causes a great deal of mental and emotional distress to transgender people who couldn’t access health care. Thus, not providing health care to transgender individuals violates the state’s constitutional obligations to provide health care to its citizens and violates the equality clauses in the constitution, as transgender people are systematically excluded from state health care services due to the committee’s lack of action.
Furthermore, the committee in its current form constitutes an illegality, as examining and providing health care to citizens should be within the executive branch’s authority represented in the Ministry of Health and not a professional entity such as the Medical Syndicate. The Ministry of Health has a legal obligation to correct this illegality by transferring the work and duties of the committee from the Medical Syndicate to the Ministry of Health. The Ministry of Health is obligated to establish a workable regulatory framework that would govern the committee’s work, allowing it to deliver decisions and health care to transgender people in a timely manner.
- The appeal is accepted on the merits and the form/as a matter of form.
- Urgently issue a court order to allow our plaintiff to undergo gender-affirming health care.
- Correct the violations our plaintiff has suffered from by issuing a positive decision allowing her to continue her gender-affirming health care and access to legal gender recognition after finishing her surgeries.
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