Written by Lisa Verberne
In 2020, several transgender and intersex emancipation groups led by a Dutch transgender woman called Willemijn van Kempen, united to seek justice for the people affected by a discriminatory law dubbed the Transgenderwet (Transgender Law). The Transgenderwet described two conditions for transgender and intersex people who wanted to legally change their gender. Firstly, the person was required to irreversibly sterilise themselves. They were not allowed to save their own genetic material, which meant that they were also unable to have their own biological children in alternative ways. Secondly, they needed to have their body surgically altered to adhere as much as possible to pre-determined views of ‘female’ or ‘male’ bodies. The Dutch government estimates that around 2000 people underwent surgeries to fulfil these conditions. The law was in effect from 1985 until 2014 when it was finally discontinued.
It would take six more years for the government to officially apologise for the law. In November 2020, the Dutch ministers of Emancipation, Ingrid van Engelshoven, and the minister of Legal Protection, Sander Dekker, apologised and promised to compensate all the victims with €5000. This policy for damages was finalised in autumn 2021, meaning that victims can now start their cases for compensation (the policy, in Dutch, can be found here). The compensation policy can only be claimed by people who chose to have the surgeries. Even though people who opted against a legal transition might have suffered other consequences resulting from the fact that their gender was not legally recognised, this group will not be compensated. On the 27th of November 2021, van Engelshoven apologised again in a ceremony in the Ridderzaal. The government also announced that it will be undertaking a study to investigate what effects the law has had on transgender and intersex people.
The Transgenderwet: an infringement on bodily autonomy
Transgender and intersex people were given an impossible choice between bodily autonomy and changing their registered gender. A legal gender change is incredibly important for many intersex and transgender people as it is a recognition of their gender identity and grants them (at least some) safety from surveillance and discrimination by, for example, airport security or the police. However, giving up the freedom of choice when it comes to a transition and having children is an unreasonably high price to pay for a small administrative change. Victims of the Transgenderwet should not have been confronted with this choice at all: a government should not be able to enforce sterilisations or cosmetic surgeries (especially when the desired appearance can only be achieved through permanent physical modifications). Both conditions constituted grave violations of the bodily integrity of Dutch citizens. In this article, I will argue that these infringements can be traced back to two related processes: the medicalisation of transgender and intersex bodies and eugenicist logic in state policy. I will discuss each of these phenomena and relate them to the way they have affected the bodily autonomy and integrity of Dutch transgender and intersex people.
Medicalising non-conforming bodies
The medicalisation of transgender and intersex bodies – the process in which their gender incongruity is treated as a medical condition or problem needing intervention – is one of the driving forces behind the Transgenderwet and many laws similar to it. Associate Professor of Gender and Women’s Studies Toby Beauchamp argues that American law and medicine seem to think of trans bodies as “unruly” and, therefore, suspect and unacceptable. Trans bodies are not seen as a neutral form of variation, but as a deviance from the norm. This ‘deviance’ is then transformed into a medical condition. Consequently, a transition of a trans person is often seen as a purely medical process that should rid the person in question of any physical features that are seen as incongruent with their gender (rather than as a process that is meant to reflect an individual person’s medical and/or non-medical wishes). I would argue that the Transgenderwet is the result of a similar medicalising logic. By requiring surgeries as a condition for legal recognition, Dutch law rendered the existence of natural but – in the eyes of the state – non-conforming bodies into a medical problem. As a result of this medicalisation, the Dutch government took away the ‘privilege’ of a legal gender change for intersex and transgender people who did not ‘normalise’ their bodies according to cisnormative, medicalised standards.
Although the state legislated this form of medicalisation, doctors also played an important role in its enforcement. In obediently executing the operations necessitated by the Transgenderwet, doctors adopted the same medicalising discourses as the state and brought them into practice. They decided which plastic surgeries their patients ‘needed’ for their body to ‘fit’ their gender and unquestioningly performed sterilising surgeries that were not medically necessary nor desired. There was an incredible power imbalance between doctors and their patients since the doctor’s approval stood between them and legal registration of their gender: many felt no other choice but to undergo a full medical transition and sterilisation as ordered by their doctor. However, where the government took responsibility, most doctors have not. Van Kempen, the leader of the Transgendercollectief, expressed dissatisfaction with the fact that doctors have not been held accountable for their uncritical obedience to the Transgenderwet.
The Transgenderwet is only one of many examples of the medicalisation of trans and intersex bodies in the Netherlands. ‘Normalising’ operations on intersex babies and children are still legal in the Netherlands. These operations on the genitals, testes and ovaries of intersex babies and children serve only cosmetic purposes but are treated as a medical necessity. Similarly, transgender people trying to access trans health care still need to pass intense and patronising psychological assessments that are based on close-minded views of gender. Evidently, Dutch trans and intersex people have been subject to a scrutinising medical gaze that limits their access to health care and seeks to ‘normalise’ their bodies. Put into practice, these forms of medicalisation completely disregard their bodily autonomy.
Sterilisation and eugenics
Although these cosmetic conditions of the Transgenderwet were incredibly invasive, the sterilisation requirement was even more extreme and dehumanising. The government has not been explicit in stating what the reason underlying the infertility condition was. However, the fact that sterilisation was not medically necessary, combined with an explicit prohibition on saving genetic material, suggests that the state did not want transgender and intersex people to have children. This makes the law a form of eugenics. Eugenics is the encouragement (by the state or by other organisations) of certain groups of people to reproduce and the discouragement or even prohibition of other groups of people to have children. In the most extreme forms of eugenics, people are sterilised or even murdered to prevent their procreation. Eugenics reached its height during the Second World War when people of Jewish or Romani descent, physically and mentally disabled people and queer people were persecuted and murdered in the pursuit of a ‘superior’ German, Aryan gene pool. Eugenics lost most of its popularity in the wake of the Holocaust, but its ideas and mechanisms can still be found in contemporary discourses.
The Transgenderwet is a striking reminder of the survival of eugenics in the Netherlands. Feminist researcher A. J. Lowik traces the infertility condition for a legal gender change – which, unfortunately, is not unique to the Netherlands – to the historical origins of eugenics. They demonstrate that, among other factors, a perceived incongruity or ‘mismatch’ between someone’s sex and their masculine or feminine behaviour has often constituted a reason to deem someone unfit to have children. Lowik argues that the current sterilisation of intersex and transgender people, ordered by laws like the Transgenderwet, is, therefore, a continuation of eugenic ideas surrounding gender, sex and parenthood. The Transgenderwet, then, was a eugenicist state strategy to prevent the procreation of people it deemed unfit.
Looking to the future
The Transgenderwet painfully exemplifies the systematic intervention of the Dutch government in the bodies of transgender and intersex people. I have argued that these infringements of bodily autonomy can be traced back to medicalising and eugenicist discourses. In these discourses, the bodies of transgender and intersex people are seen as unruly and unfit for procreation, resulting in, among other forms of discrimination, the sterilisation and ‘normalisation’ conditions of the Transgenderwet.
Dutch transgender and intersex people are still fighting for bodily autonomy that can only be achieved through national legislative changes. Right now, the government should focus on making amends and compensating the victims of the Transgenderwet. In the future, it should ensure that intersex and transgender get full access to medical care on their own terms. Moreover, the Dutch government has to address the way they register trans and intersex parents. Once again, cisnormative views of bodies and parenthood lead to problems for many trans and intersex parents who are being registered based on their role in the conception of the child (where conceiving makes them the legal father and carrying makes them the legal mother) rather than as the parent role that fits their gender (a Dutch interview with a lawyer discusses these cases in detail). Political parties should learn from the harm the Transgenderwet has done and make laws surrounding parenthood and bodily autonomy more inclusive of trans and intersex people.
Beauchamp, Toby. “Artful Concealment and Strategic Visibility: Transgender Bodies and U.S. State Surveillance after 9/11.” Surveillance and Society 6, no. 4 (2009): 356–66. https://doi.org/10.24908/ss.v6i4.3267.
Lowik, A. J. “Reproducing Eugenics, Reproducing While Trans: The State Sterilization of Trans People.” Journal of GLBT Family Studies 14, no. 5 (2018): 425–45. https://doi.org/10.1080/1550428X.2017.1393361.
Peperkam, Rowan. “Willemijn (59) over staatsexcuus Transgenderwet: ‘Stukje waardigheid terug’’.’” LINDA, 2020. https://www.linda.nl/lief-en-leed/transgenderwet-excuus-kabinet-interview/.