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Transgendered citizenship in the Norwegian welfare state:

The non-recognition of diversities, or

Gender Equality for all kinds of gender?

Janneke van der Ros,

Assoc. Prof. and Senior Research Fellow

University College of Lillehammer and Regional Centre of Equality, Hamar

Norway

Paper presented at

The European Conference on Politics and Gender,

Organized by the Standing Group on Gender and Politics,

Section: LGBTQI Rights,

Panel: Sexuality and Politics Sexual/Gender Diversities and Assimilationism/Radicalism

Debates

Barcelona 21-23. march 2013

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Abstract

The article assesses some central gender equality principles in Norway for people in the transgender

specter by comparing access to transrelated health care and recognition of gender identity in the

legal system for different groups of transgender people: transsexual persons, i.e. trans people

diagnosed with the gender identity disorder transsexualism, and trans people experiencing gender

identity problems, but without a diagnosis. With regards to (trans-) gender equality in the health care

sector, trans people without the diagnosis have no access to gender identity related health care

services in the public health care sector. In the legal system, official recognition of a trans person’s

gender identity and providing identity papers congruent with the person’s gender identity and

gender expression, is conceivable only for those who accepted and indeed have undergone

irreversible sterilization. Second, gender identity and gender expression are not part of either gender

equality or anti-discrimination legislation, so transgender individuals are unprotected against

discrimination on these grounds. These cases show, the author argues that gender equality policies

seem primarily intended for women and men as understood in a (heteronormativ) binary gender

model. Transgendered people who are or act too different from the gender binaries in the model are

not granted equal citizenship rights and recognition.

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Introduction

Equality politics is about handling differences – how does a government assure that difference and

diversity among a nation/state’s citizens is taken into account and that people different from one

another in a number of central ways are treated similarly. In this paper, I argue that Norwegian

gender equality first and foremost is designed for 1) women (and men) well settled in the

heteronormativ binary gender model, and 2) for those in the GLBTQI specter who are assimilated

within this model. Those different from the so-called “ordinary” women and men gender types

challenge the regular order when demanding recognition for a variety of different gender identities

and claiming inclusion in the state-feminist gender equality project. I refer here to recognition as

understood by political science scholar Nancy Fraser (2003). Similarly, other citizens different from a

white, middleclass, non-Christian, able-bodied, and preferably urban women and men citizen model,

may experience failures of recognition and redistribution policies as well. In this paper though, I

focus predominantly on transgender people’s experiences with a) the Norwegian welfare state with

regard to access to health care services related to their gender identity dysphoria, and b) the non-

inclusion of transgender issues in Norwegian gender equality legislation, such as anti-discrimination

on grounds of gender identity and gender expression, and access to identity papers congruent with a

person’s gender identity and gender expression.

I will present and discuss some results from recently undertaken research on Norwegian transgender

people’s living conditions and life quality in a “(trans-)gender and politics” perspective: asking how

the state handles/reacts to (trans-) gender differences, i.e. differences between all kinds of gendered

people. What would gender equality policies look like if gender diversity would be recognized and

taken into account in the policy processes?

In order to illuminate my argument, I make a distinction between trans people with the diagnosis of

transsexualism, F64.0 and those without this diagnosis, and discuss some of the implications of this

distinction in the Norwegian welfare state. Gender, gender identity and gender expression, being the

central theme in trans*gender people’s life, I reflect about different meanings of “doing gender”,

“doing gender differently” and “doing different genders” for trans*gender and cisgender individuals,

before showing empirically some of the failures of the Norwegian gender equality project with

regard to those being different from, and of which many choose to stay different from women and

men within the binary gender model.

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The trans*gender specter – troublesome and troubling terminology

The terminology trans*gender specter is used to imply all those who experience or have experienced

discomfort due to a mismatch between the sex ascribed at birth (and recorded in the birth protocols

and subsequently in all kinds of ID papers, social security numbers, passport etc.) and a person’s self-

identified gender. Simply stated (as far as simplicity is possible): trans*gender is about incongruence

between a person’s bodily (or anatomical) sex and this person’s mental (or psychological) gender, i.e.

her/his/hen’s gender identity. These incongruences arise because both biological sex, and the social

construction gender traditionally have been considered as dichotomous constructions (Beemyn &

Rankin 2011:19). In the specter we include the experiences of people with nonbinary identities;

gender nonconforming, gender diverse, gender variant people, gender rebels, transsexuals, cross-

dressers, gender queers and what other labels individuals choose to describe their gender identity or

identities. There are no neutral terms related transgender people (Valentine 2007); classification and

naming is always politically charged (Beemyn & Ranking 2011:16). My reason for distinguishing

between transsexuals and others with transgender experiences is to examine and question the basis

of Norwegian gender equality policies. The first category, transsexuals, designates those who have

been diagnosed with transsexualism; F64.0 in the WHO International Codes of Diseases system (ICD

10) and the second group are those who are not recognized as having a severe (“enough”) gender

identity disorder or dysphoria and therefore do not qualify for treatment. In Norway this distinction

is decisive for the recognition of a medically important illness, ensuring access to lifelong treatment

in the public health sector (and thus publicly financed). Within the first category, the transsexual

persons, the gender “variety” corresponds with the binary model: one’s gender identity is opposite

one’s bodily sex. The conventional narrative for patients at the hospital diagnosing and treating the

disorder (Section of Transsexualism at the Oslo University Hospital, which is the one and only

hospital in Norway certified to offer diagnostic examination, and if the patient qualifies, to provide

treatment) is that a person with transsexualism is “born in the wrong body or born with the wrong

sex”, and the only solutions to the disorder is to “correct the body” (medical terminology!) with

hormonal and genital interventions to establish congruence. After these treatments, including

irreversible sterilization, the birth certificate and all other id papers will be adjusted accordingly (to

provide the right judicial gender identity). Transsexuals are thus either male-to-female, or female-to-

male, and, in Norway, their interest organization (the Harry Benjamin Resource Center) prefers the

label “sex-conversed” women and men, or simply women and men. Within the other main category,

transgender people, the gender variety is, as mentioned above, large, can be floating, and gender is

often understood as a continuous rather than a dichotomous feature. But also in this group we find

quite a few FtM and MtF transgender persons; but these have not undergone SRS (Sex Reassignment

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Surgery), although many will have, or would like to have, modified their bodies and gender

expression to be more in line with their gender identity. The illustration below may provide an idea

of some of the diversity in the trans*specter (and when using the asterix *, I mean to include both

main categories, i.e.: all those who experience/d bodily sex - gender identity dissonance). In the

empirical part of the paper, I focus primarily on trans people who all time or most of the time live in

their preferred gender expression, in harmony with their gender identity, and who have to find ways

to be able to do so, other than through gender confirming treatment implied in the diagnosis F64.0.

If applying results on prevalence from a recent Dutch population study on sexual health (Kuypers

2012), finding that 0,6 % of the male population and 0,2 % of females (sex ascribed at birth), on the

Norwegian population, this would amount to proxy 19.000-20.000 individuals. The question of

prevalence is important – according to Winter & Conway: «Minorities don’t count, if you can’t count

them.” (2011:1).

Important here to underline: these two categories are not to be considered as identity categories.

We have to perceive classifications in relation to the intention of the classifier. Trans*individuals

choose self-definitions crossing the boundaries of these categories. The terminology is by no means

accepted universally in Norway, but it is considered suitable for the examination in case.

“Categories may recognize you, even if you do not recognize the category.”

Browne & Bakshi: 2011:63

Gender equality in the Norwegian political climate

Recently the Government published a Green Paper discussing basic principles of gender equality,

with more emphasis on differences based on ethnicity, class and live course (NOU 2012:15). The

point of departure for the Green Paper’s equality reflections is justice, and the ideal is a just society.

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The definition of gender equality is “ensuring all citizens equal access to equal participation in society

on the same just conditions”. (op.cit.: 57) Equal participation in society includes education, labor

marked, political life, but also family life etc. – i.e. all society’s arenas, political, economic, and

cultural – and both public and private spheres are supposed to guarantee equal access for all. Equal

access implies absence of violence and force; and not any hindrances, discrimination, marginalization

or exclusion of certain groups of citizens to any of these arenas. Two conditions the state needs to

ensure so that citizens and groups of citizens can participate on equal foot I highlight is, one:

individual freedom and autonomy to act according to one’s own values and preferences, and, two:

cultural recognition and respect for each and every one, meaning no systematic degrading because

of cultural differences and/or specific characteristics or appearances (Fraser 2003). The second

condition is of central importance for trans-gender equality positions. Furthermore, Norwegian

gender quality policies have a human rights foundation. I will assess Norwegian gender equality

according to these two conditions on a few major trans political issues.

A background for my (trans-)gender equality reflections are my observations of living conditions and

treatment trans*folks experience in the Norwegian social democratic welfare state where collective

responsibilities for its citizens’ life, health and wellbeing, and equality, is a prominent principle.

Simply stated, I want to assess whether there is room for different trans*genders in Norwegian

gender equality policies. Can people with gender identity dysphoria or incongruence be integrated in

gender equality policy considerations? And the other way around: Can trans*people’s needs and

political claims be justified in gender equality terms?

Doing gender, doing different genders, doing genders differently

For people with gender identity questions, dysphoria, incongruence or disorders, or, in short

trans*people, understanding and managing gender issues is dominant, both in practical living and in

theoretical reflections. In this section I want to mention some of the differences regarding

doing/being/performing/etc. gender for trans* and cisgender persons. Cisgender means being a non-

trans individual: one for whom resonance between bodily sex and psychological gender/gender

identity is apparent and considered a natural situation. Schilt and Westbrook definition: "/.../

individuals who have a match between the gender they were assigned at birth, their bodies, and

their personal identity, complementing transgender.” (2009:43)

We can differentiate between different levels of understanding gender – gender as the organizing

principle in society, where gender has a heterosexual and binary content, and organizes the private

and public sphere, family life, the labor marked and, not the least, legislation. The gendered division

of labor plays an important role in constituting gender in society, and establishing a gendered social

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order. At a symbolic level gender is seen as a cultural principle «”cultural agreements about what is

recognizable and acceptable as masculine, feminine and androgynous /… /» (Green 2004:121). At this

level discussions and elaborations about the meaning(s) of sex/gender develop and the limits of

norms and boundaries of different genders are contested. Here too, negotiations about the gender

binary itself evolve, and if/how to transgress binaries, and if/how other genders and gender

expressions and identities can be accepted and recognized as legitimate human expressions and

materialities (Bornstein 1994; Davy 2011; Sapiro 1991; Serano 2007; Valentine 2007; Stryker &

Whittle 2006; Rasmussen 2005).

The third level entails individuals’ features – bodily and psychologically. Here the picture is more

complex; distinguishing between different ways individuals, and here it is important to highlight

differences between trans* and cisgender individuals, with regard to handling the combinations of

sex/gender/gender identities/gender expressions (West & Zimmermann 1987; West & Fenstermaker

1995, van der Ros 2013). In Norwegian gender studies, usual distinctions of understanding gender

are between having a sexed body, being a sexual person, doing gender, and negotiating the doing(s)

of gender and negotiating cultural gender norms (Holter 1996). All these approaches to gender are

seen through binary lenses, and discussions evolve around the different conditions for

doing/having/negotiating gender and gender norms for ciswomen and cismenn. The understandings

of sex/gender have quite different connotations when discussion trans*gender persons’ gender

identity and gender expression issues.

I want to add another approach to sex/gender with specific importance to trans*gender people.

While doing gender is something the individual controls, individuals are also ‘being gendered’,

gender is ‘done’ to us; that is, others identify us according to the binary model as women or men and

make statements about what sex/gender they figure we are, or look like. And if this “other” person is

a state official or a professional (police officer, medical staff, pass controller, bank employee, etc.)

their gendering of the person has precedence over the trans*person’s own gender identity.

Trans*people meet challenges due to three kinds of incongruence: the first one is the incongruence

between physical sex and mental gender identity. That one brings about a second incongruence

(unless SRS allows for a new judicial gender, as it does for transsexual women and men), namely the

incongruence between one’s gender expression and the sex identification stated in the ID papers.

And this incongruence conveys the third one: the incongruence between one’s own gender identity

and other people’s ideas about one’s sex, based on bodily appearance, and possibly on the ID papers.

And, this “other” has the decisive saying; off you are to the wrong ward at the hospital. Such a

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situation is an example of what Bettcher calls a «basic denial of authenticity» (2009:37). Whose

definition of gender is recognized and respected?

I find the discussion by Bettcher (2007) about trans*persons being met with either a “pretender” or a

“deceiver” stigma clarifying for situations and humiliating experiences trans*folks meet with regards

to the incongruence society makes them live with. When a trans woman is read as “really a man”,

such devaluation makes it more complicated to come out clearly as a trans*person, but it also makes

it difficult to pass as a woman, and not as a transperson. In the first case one can be seen as a

«pretender”, and in the second situation as a «deceiver» (Bettcher 2009:39). Either way, none of

these readings shows respect for or recognition of a person’s identity. I want to consider such basic

non-recognition of a person’s authenticity in light of some of the gender equality principles. This is

especially important in Norway, where we witness very differential ways of treating individuals with

one or more of the above mentioned incongruences related to gender identity, depending on

whether the medical GID team assesses the “patient’s” dysphoria “severe enough” to assign the

diagnosis F64.0, transsexualism.

Trans*gender equality in the health sector

In Norway only one institution is authorized to examine, diagnose and treat people with gender

identity dysphoria: the Section of Transsexualism at the University Hospital of Oslo, (SfT at OUS).

Proximately 100-120 patients yearly are referred to the clinic by their GP or by a Psychiatric ward.

Only about 25 persons are considered to meet the clinic’s requirements for the diagnosis F64.0, and

these are primarily younger people (i.e. under 30). The average age of patients at the clinic is 23

years. The entire treatment, from examination through one or two years of Real Life Test with

hormonal treatment and finally, genital and other surgical interventions, may take from 8 to 10

years. The entire process occurs at this public University hospital, and is funded over the

government’s health care budget.

Those who do not meet the standards/requirements are referred back to their GP, who in most cases

is not familiar with the symptoms and different kind of discomfort related to gender incongruence.

The Norwegian health system does not provide the option of a “second opinion”. Since these

individuals’ gender dissonance is not recognized as a serious (“enough”) disorder by the University

Hospital’s medical team, access to public health care related to the gender dysphoria is barred. These

trans*persons’ needs for some sorts of surgery, such as for instance breast surgery, or face

alteration, are labeled as ‘cosmetic’ by the national health directorate (Helsedirektoratet 2012), and

as such not valid for public funding. Are they seen as “Pretenders” or “Deceivers”?

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While the treatment is considered a “medical necessity” for those diagnosed with F64.0, for those

with F64.8, F64.9 or no diagnosis, the treatment is labeled “cosmetic”. Several of those turned down

at the clinic accomplish treatment such as SRS and hormones abroad, that is: those who can afford

such. In order to apply for the judicial change of sex in ID papers, they must be prepared to meet

some sort of humiliation: they have to “prove” to the medical team at the clinic (!) that their sex

convergence is “real”, and that they indeed are irreversibly sterilized. “Pretenders” or “Deceivers”?

Two observations related to gender equality: how does this official stand concur with the conditions

of “individual freedom and autonomy to act according to one’s own values and preferences” (NOU

2012:15, 57), and the condition of cultural recognition and respect for each and every one? In my

opinion, transgender individuals are not counted into the gender equality project. Particularly, not

allowing the possibility of a second opinion is a severe devaluation of a citizen’s right to be seen,

heard and recognized.

Second: Norwegian gender equality legislation is based on human rights, and has signed the UN

Resolution on Economic, Social and Cultural rights. Article 12 of the Resolution assures citizens the

highest possible health standard without any form of discrimination.

Furthermore: the new WPATH SOC7 (2011) states: “Being transsexual, transgender, or gender

nonconforming is a matter of diversity, not pathology”. And holds the opinion is that all people with

gender identity dysphoria are in need of, and have a right to health care. Neither the Public Health

Care administration, nor the GID clinic seem updated on the latest development within the WPATH

paradigms with regards to new recognition of trans*gender people and the reformulated SOC (7).

A second challenge with regards to gender equality in the health sector concerns those referred to

the clinic examination and transsexual patients. There appears to be a specific dynamic between

individuals with gender identity issues and health professionals at GID clinics that puzzles me. I have

labeled these dynamics as the “choreography of distrust”; a kind of complicated ‘dance’ where those

referred to the Clinic for examination use the established discourse, or rhetoric, of being born in the

wrong body in order to get access to trans related health services, and where the medical staff seems

eager unmask eventual “deceivers” or “pretenders”. The narratives from my informants are quite

different from what we think of as an ordinary trustful patient-doctor relation.

Another problematic issue with the health services provided at the Clinic – for those who get through

– is about the treatment of patients (once they have qualified for treatment, they are defined as

“gender-correction patients” by the Clinic’s staff). A patient’s reluctance towards genital intervention

may cause loss of diagnosis. Such hesitancy may be interpreted that the patient has been

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“pretending”. The patient is expected to follow the scheme of treatment and accept the whole

“package”, without individual adjustments. Both types of health care dynamics seem to violate the

individual’s right to integrity and autonomy over one’s own body – and thus, not in accordance with

the conditions for gender equality.

In this section I first showed large differences in access to gender identity related health services

between those with and without the diagnosis, F64.0 (and F64.2 for young persons). For those not

qualified for treatment, no second opinion is available. Second I presented the kind of treatment

transsexual patients meet at the clinic – which also leads to that several trans*persons do not want

to be examined at the Clinic at all. This indicates large differences between different types of

patients: mental illness of this kind seems to be met with depreciation; are these patients considered

to have lower human worth?

Trans*gender equality in the legal system?

Here I want to present two issues: the right to change judicial gender – i.e. change gender

assignment in one’s birth certificate and all other ID papers; and second the right to be legally

protected against discrimination on grounds of gender identity and gender expression. Transgender

studies from all countries present discriminatory behavior towards trans*people in all arenas of life,

(Grant et.al. 2011; Motmans et.al. 2010; Turner et.al. 2009; Whittle et.al. 2007) and that is the case

in Norway as well, albeit less obvious in many instances; a person may lose her job after gender

confirming surgery, but they will present it as due to ‘reorganization of the office’ (Van der Ros

2013).

With regard to solving the incongruence between gender expression and gender identification in ID

papers, the “simplest” solution is to have changed one’s ID papers, as is possible in Argentina since

July 2012. In order to be able to apply for such change in Norway, the condition is to accomplish

irreversible sterilization. Among those with the F64 diagnosis and access to treatment, several

transsexual persons have reservations about genital reconstruction, and are comfortable with top

surgery and hormone treatment only. However, if they want to obtain congruency between gender

in id papers and gender expression, they too have to accept irreversible sterilization. Quite a few

among the younger transsexuals do not want to submit to this claim, and so they are denied a new

judicial gender, and have to cope with their incongruence. Norway has been approached by the

European Human Rights Commissioner on these grounds – the condition of sterilization is considered

a violation of human right over one’s body, and a violation of a person’s privacy (Hammarborg 2009).

Again, a situation that is not consistent with Norway’s gender quality conditions.

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This is one example of different treatment. Transgender people are not equally treated with

cisgender people (where sterilization is not even allowed under the age of 25). For transsexual

patients, written consent from the patient to sterilization is not requested, since this is a part of the

genital reconstruction intervention. Here, I read that transsexual persons’ bodily integrity is ignored.

Another aspect of the irreversible sterilization condition where we observe differences in trans*

patients’ rights and other patients’ privileges, is that other patients (f.i. in case of prostate cancer

bringing about involuntary sterilization), are offered freezing of sperm. This is not an option offered

transsexual patients undergoing genital reconstruction.

The claim of sterilization and the absence of the option of the freezing of sperm may, in the worst

case, be interpreted as the government’s fear of transsexualism being a transmissible condition and

fear of “the pregnant man”.

The second issue in the legal sphere is about being protected against discriminatory actions based on

gender identity or gender expression. Neither Norway’s anti-discrimination legislation, nor the

gender equality act has incorporated this extended understanding of gender in the legislative

deliberations. New anti-discrimination legislation will be presented March 22nd to Parliament and

rumors are that the inclusion of the discriminatory grounds of gender identity and gender expression

is not recommended. Transsexual individuals and patients are protected under the gender equality

act against discrimination on the basis of gender. Trans persons, on the other hand, those with an

impractical incongruence between gender expression and gender assigned in ID papers, are not.

Summary and concluding remarks

In this paper I assessed gender equality principles and conditions by looking at trans*gender people’s

everyday life experiences in order to tell whether gender equality also could be taken to mean

trans*gender equality. I concentrated specifically on two important conditions for equality namely:

recognition and individual’s freedom to act according to their own values and preferences. I focused

on two societal arenas: the public health sector and the legislative sphere.

In the first one, I observed a lack of recognition of gender identity issues for those who did not

qualify for the diagnosis F64.0, in two ways: no option of a second opinion and no further access to

public health care related to their gender identity issues. The experiences that patients at the section

of transsexualism purvey, is a specific dynamics of distrust, where patients feel they are considered

“pretenders” or deceivers”. I further presented differential treatment between F64.0 patients and

other patients with regard to sterilization and the option to freeze sperm/eggs.

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In the judicial area, an administrative directive claims irreversible sterilization before a trans*gender

person can apply for a change in birth certificate. For those who have undergone SRS at another

hospital than the Norwegian, their sterilization has to be certified by the clinic. The second legal item

I presented was the lack of anti-discriminatory protection on the grounds of gender identity and

gender expression, and thus trans people are left unprotected, another issue the EU Commissioner of

Human Rights has commented on (Hammarberg 2011).

What are the implications of this non-recognition of trans*people’s rights – for the trans* people?

To me, it seems the choices are two: 1) being defined as so-called “disturbed”, the mental health

diagnosis F64.0; a “choice” open to relatively few in Norway. The second choice is being “disturbing”,

that is, challenging the gender binary, living with and coping with incongruences.

None of these choices are particularly encouraging. The first one gives access to alleviate the

dissonance between bodily sex and gender identity, and after sterilization the opportunity to nullify

the incongruence between gender expression and ID papers. One can pass as woman or man: non-

disturbing. They are considered “real woman and men” and enjoy the rights and privileges of gender

equality legislation. The other option – those who either do not qualify for public health care, and/or

those who do not want to be confined to the gender binary, have to cope with being a “disturbing”

element in a society organized around the heteronormative two gender model. This implies

managing several incongruences: between bodily sex and gender identity, between gender

expression and gender assignment in ID papers, and finally, the incongruence between one’s own

and other people’s ideas of one’s gender identity, giving precedence to the others’ reading. The

“disturbing” choice implies to be defined as “pretender” or “deceiver”, i.e. non-recognition of

person’s identity and worth.

Non-recognition of one’s gender identity dysphoria leaves a person non-recognized in many other

ways too. The problem is that gender recognition comes in response to medical treatment, instead of

medical treatment in response to gender recognition (Vreer,transserv mailinglist, 25.02.2012).

Gender equality is a more complex and more complicated political issue once we take departure in

an extended understanding of gender, beyond the ramifications of the heteronormative gender

binary. But it is only such policy that will be able to guarantee the authenticity and autonomy of

citizens of all kind of genders. Only then we can talk about equal transgendered citizenship in

Norway.

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