3. Are laws in OECD countries LGBTI-inclusive?

Protection of LGBTI people against discrimination

The protection of LGBTI people against discrimination in a Member country is addressed through three categories, each of which can be decomposed into three questions.

Because “the right to work, which includes the right of everyone to the opportunity to gain his living by work” is central to the International Bill of Human Rights, the first category of questions investigates whether anti-LGBTI discrimination in employment is explicitly prohibited:

• Is discrimination based on sexual orientation explicitly prohibited in employment by the national law?

• Is discrimination based on gender identity explicitly prohibited in employment by the national law?

• Is discrimination based on sex characteristics and/or intersex status explicitly prohibited in employment by the national law?

The second category of questions goes a step further by investigating whether anti-LGBTI discrimination in a Member country is explicitly prohibited in a broad range of fields, beyond employment (i.e. in the provision of and access to goods and services including housing, education, health, social benefits and social assistance).

• Is discrimination based on sexual orientation explicitly prohibited in a broad range of fields by the national law?

• Is discrimination based on gender identity explicitly prohibited in a broad range of fields by the national law?

• Is discrimination based on sex characteristics and/or intersex status explicitly prohibited in a broad range of fields by the national law?

The third category of questions dives deeper by investigating whether anti-LGBTI discrimination is explicitly prohibited in the Constitution, which enshrines the most fundamental legal principles of any given country:

• Is discrimination based on sexual orientation explicitly prohibited by the Constitution?

• Is discrimination based on gender identity explicitly prohibited by the Constitution?

• Is discrimination based on sex characteristics and/or intersex status explicitly prohibited by the Constitution?

Protection of LGBTI people’s civil liberties

The protection of LGBTI people’s civil liberties in a Member country is addressed by the following three questions:

• Is it the case that the national law has no specific provision concerning communication on LGBTI issues (e.g. through anti-propaganda measures)?

• Is it the case that the national law has no specific provision concerning peaceful assembly of LGBTI people (e.g. through barriers to the organisation of LGBTI public events)?

• Is it the case that the national law has no specific provision concerning association of LGBTI people (e.g. through barriers to the registration or funding of LGBTI associations)?

Protection of LGBTI people against violence

The protection of LGBTI people against violence in a Member country is addressed by two categories of questions. The first investigates whether LGBTI people are protected against hate crime:

• Is hate crime based on sexual orientation explicitly criminalised and/or considered by the national law as an aggravating circumstance?

• Is hate crime based on gender identity explicitly criminalised and/or considered by the national law as an aggravating circumstance?

• Is hate crime based on sex characteristics and/or intersex status explicitly criminalised and/or considered by the national law as an aggravating circumstance?

The second category of questions investigates whether LGBTI people in a Member country are protected against hate speech:

• Is hate speech based on sexual orientation explicitly criminalised and/or considered by the national law as an aggravating circumstance?

• Is hate speech based on gender identity explicitly criminalised and/or considered by the national law as an aggravating circumstance?

• Is hate speech based on sex characteristics and/or intersex status explicitly criminalised and/or considered by the national law as an aggravating circumstance?

Protection of LGBTI people fleeing persecution abroad

The protection of LGBTI people fleeing persecution abroad in a Member country is addressed by the following three questions:

• Does the national law and/or published policy explicitly recognise persecution (or a well-founded fear of persecution) based on sexual orientation as a valid ground for granting asylum?

• Does the national law and/or published policy explicitly recognise persecution (or a well-founded fear of persecution) based on gender identity as a valid ground for granting asylum?

• Does the national law and/or published policy explicitly recognise persecution (or a well-founded fear of persecution) based on sex characteristics and/or intersex status as a valid ground for granting asylum?

Existence of an LGBTI-inclusive equality body, ombudsman or human rights commission

The existence of an LGBTI-inclusive equality body, ombudsman or human rights commission in a Member country is addressed by the following three questions:

• Is a national equality body, ombudsman or human rights commission explicitly in charge of supporting victims of discrimination based on sexual orientation?

• Is a national equality body, ombudsman or human rights commission explicitly in charge of supporting victims of discrimination based on gender identity?

• Is a national equality body, ombudsman or human rights commission explicitly in charge of supporting victims of discrimination based on sex characteristics and/or intersex status?

LGB-specific provisions

The part of the questionnaire that deals with LGB-specific provisions in Member countries relies on 11 questions.

Equal treatment of same-sex and different-sex consensual sexual acts

The equal treatment of same-sex and different-sex consensual sexual acts is addressed by the following two questions:

• Are consensual same-sex sexual acts legal?

• If consensual same-sex sexual acts are legal, are the age of consent for consensual same-sex sexual acts and the age of consent for consensual different-sex sexual acts equal?

Ban on conversion therapy

A Member country’s policy regarding conversion therapy is addressed by the following question: “Is conversion therapy on minors banned? (The term “conversion therapy” refers to practices that aim to change an individual’s sexual orientation from homosexual or bisexual to heterosexual)”.

Legal recognition of same-sex partnerships

The legal recognition of same-sex partnerships is addressed by the following three questions:

• Is same-sex cohabitation or de facto partnership legal? (The term “cohabitation or de facto partnership” refers to a regime with usually a narrower legal scope than a registered/civil/domestic partnership or civil union and, hence, marriage. By “legal”, we mean that same-sex couples in a cohabitation or de facto partnership are granted at least some of the rights that are granted to different-sex couples in a cohabitation or de facto partnership).

• Is same-sex registered/civil/domestic partnership or union legal? (The term registered/civil/domestic partnership or civil union describes a wider-ranging regime than cohabitation that resembles marriage without being equivalent to marriage.)

• Is same-sex marriage legal?

Equal adoption rights

Equal adoption rights for different-sex and same-sex couples is addressed by the following two questions:

• Is it legal for partners in a same-sex partnership to jointly adopt a child? (The term “joint adoption” refers to a process whereby (i) the legal relationship between a child and her/his biological parents is extinguished; (ii) the adopting partners become the two legal parents of the child).

• When one partner in a same-sex partnership is a legal parent, can the other partner become the second legal parent through adoption (i.e. second-parent adoption), assuming that there is no second legal parent registered?

Equal access to assisted reproductive technology

Equal access to assisted reproductive technology for different-sex and same-sex couples is addressed by the following three questions:

• Is a partner in a same-sex partnership treated on an equal footing with a partner in a different-sex partnership concerning access to medically assisted insemination (using sperm of a donor) or in vitro fertilisation (using donated sperm and/or egg)?

• When one partner in a same-sex partnership gives birth through legal medically assisted insemination or in vitro fertilisation, can the other partner become the second legal parent without having to go through adoption (i.e. automatic co-parent recognition)? (Please answer N/A if access of a same-sex partner to assisted reproductive technology is not legal).

• Are partners in a same-sex partnership treated on an equal footing with partners in a different-same partnership concerning access to surrogacy, i.e. an assisted reproductive technology in which a woman (surrogate) carries a child in her uterus on behalf of another person?

TI-specific provisions

The part of the questionnaire that deals with TI-specific provisions in a Member country relies on five questions.

Being transgender not categorised as a mental illness in national clinical classification

This component is addressed by the following question: “Is being transgender removed from the list of mental disorders in national clinical classification?”.

Legal gender recognition

This component is addressed by the following question: “Is the change of gender marker in the civil registry (e.g. birth certificate, social security number) legal? (By “gender marker” we mean the elements that reveal an individual’s gender. An individual’s gender marker typically consists of his/her sex at birth and first name).”

No medical requirement attached to legal gender recognition

This component is addressed by the following question: “Is it the case that the change of gender marker in the civil registry necessitates no medical requirement (sterilisation, sex-reassignment surgery or treatment including those that involve sterilisation, and/or mental health diagnosis)? (If the change of gender marker is not legal, please answer N/A).”

Availability of a non-binary gender option on birth certificates and other identity documents

This component is addressed by the following question: “Is a non-binary gender option available on birth certificates and other identity documents, on top of “male” and “female”?”

Postponing medically unnecessary sex-normalising treatment or surgery on intersex minors

This component is addressed by the following question: “Have significant steps been taken towards postponing medically unnecessary sex-normalising treatment or surgery on intersex minors until they can provide informed consent, beyond the availability of a non-binary gender option (e.g. awareness raising campaign on intersexuation, inquiry into the treatment of intersex minors, guidelines directed at medical practitioners, legal ban on cosmetic sex-normalising treatment or surgery on intersex minors, etc.)?”

Protection of LGBTI people against discrimination

Protecting LGBTI people against discrimination entails passing nine legal provisions (Annex 3.B):

• Three in order to explicitly protect LGBTI individuals against labour market discrimination (one based on sexual orientation for LGB people, one based on gender identity for transgender people, and one based on sex characteristics for intersex people);

• Three in order to explicitly protect LGBTI individuals against discrimination in a broader range of fields (i.e. beyond employment) that typically cover the provision of and access to goods and services (including housing), education, health, social benefits and assistance (again, one for LGB people, one for transgender people and one for intersex people);

• Three in order to explicitly protect LGB, transgender as well as intersex individuals in the Constitution.

Of these nine legal provisions, nearly four (40%) are in force in OECD countries as of 2019, up from approximately one (8%) in 1999. Only three OECD countries (Japan, Switzerland and Turkey) provide no explicit legal protection against discrimination to LGBTI people (Annex Table 3.C.1). By contrast, a large majority of countries prohibit discrimination based on sexual orientation in employment (32 countries) as well as in a range of other fields (30 countries). A majority (22 countries) also explicitly protect transgender people against discrimination in these fields. However, only a small minority (9 countries) aim to explicitly shield intersex people from unfair treatment in employment and beyond. The number of OECD countries who provide constitutional protection against discrimination to LGBTI individuals is even lower (5 countries), noting that this protection, when it exists, targets the ground of sexual orientation but not that of gender identity or sex characteristics.

Consistent with the 2017 resolution of the Parliamentary Assembly of the Council of Europe, explicit protection of intersex people against discrimination takes two forms (CoE Parliamentary Assembly, 2017[16]):

• Some countries insert “intersex status” or “sex characteristics” as a specific prohibited ground in the antidiscrimination legislation: this is the case of Australia, Greece, Iceland, Netherlands, Portugal and Spain;

• Other countries explicitly state in antidiscrimination legislation that protection against discrimination on the basis of an existing characteristic, e.g. “sex” or “gender identity and expression”, extends to intersex people: this is the case of Canada, Finland or Germany.

Within the European Union (EU), sexual orientation antidiscrimination laws were passed beginning in 2000s, when the so-called “Employment Equality Directive” (Directive 2000/78/EC) obliged EU countries to explicitly prohibit discrimination based on sexual orientation, at least in employment. Accordingly, all OECD countries that are also EU Members have passed such laws. Outside the EU, discrimination against LGB individuals was first explicitly prohibited in Quebec in 1977 (and then in 1981 in Norway), and last prohibited in 2012 in Chile. The passage of antidiscrimination laws that explicitly protect transgender and intersex people is more recent, coming into effect in the mid-2010s. Discrimination against transgender individuals was first prohibited in 1999 in the United Kingdom, while antidiscrimination laws protecting intersex individuals were passed for the first time in 2006 in Germany. The Netherlands were the last OECD country to pass provisions explicitly banning both types of discrimination in 2019.

Protection of LGBTI people’s civil liberties

As of 2019, no OECD country explicitly restricts the rights to freedom of expression, peaceful assembly, and association of sexual and gender minorities: national laws do not include provisions explicitly restricting communication on LGBTI issues (e.g. gay propaganda laws) or barriers to the organisation of LGBTI public events as well as to the registration or funding of LGBTI associations.

Protection of LGBTI people’s civil liberties was already ensured in most OECD countries two decades ago, except in the United Kingdom and the United States. In these countries, freedom of expression, peaceful assembly and association of sexual and gender minorities was fully recognised by national laws only in 2003 when Section 28 of the Local Government Act prohibiting the intentional promotion of homosexuality by any local authority was completely repealed (United Kingdom), and when the Supreme Court invalidated sodomy laws in Lawrence v. Texas (United States).

That said, constant vigilance is needed to avoid steps backward, as evidenced in Annex 3.D.

Protection of LGBTI people against violence

Protecting LGBTI people against violence entails passing six legal provisions (Annex 3.B):

• Three in order to explicitly protect LGBTI individuals against hate crime (one based on sexual orientation for LGB people, one based on gender identity for transgender people, and one based on sex characteristics for intersex people);

• Three in order to explicitly protect LGBTI individuals against hate speech (again, one for LGB people, one for transgender people and one for intersex people).

Of these six legal provisions, 33% are in force in OECD countries as of 2019 (i.e. two), up from 6% in 1999. Annex Table 3.C.2 reveals that one fourth of OECD countries provide no explicit legal protection of LGBTI people against violence (Czech Republic, Germany, Italy, Japan, Korea, Latvia, Poland, Switzerland and Turkey). In others, hate crime and/or hate speech laws have been passed so as to explicitly protect LGB people (26 countries), transgender individuals (14 countries) and intersex individuals (5 countries, i.e. Australia, Canada, Greece, Spain and the United Kingdom).

Sexual orientation was included as a protected ground in hate crime and/or hate speech legislation in the mid-2000s, approximately 10 years before the grounds of gender identity or sex characteristics were introduced. In several countries, this legislation was adopted as a response to murders motivated by the victims’ actual or perceived membership to the LGBTI population. This was the case in the United States where the Hate Crimes Prevention Act that came into force in 2009 was named after Matthew Shepard and James Byrd Jr. who were both murdered in 1998. Matthew Shepard was an American student who was beaten, tortured, and left to die because he was gay, while James Byrd Jr. was an African American man who was tied to a truck by two white supremacists, dragged behind it, and decapitated. The Hate Crimes Prevention Act expands the 1969 United States federal hate-crime law notably (i) to include crimes motivated by a victim’s actual or perceived sexual orientation or gender identity, as well as (ii) to remove, in the case of hate crimes related to the race, colour, religion, or national origin of the victim, the prerequisite that the victim be engaging in a federally protected activity, like voting or going to school. Similarly, in Chile, the 2012 hate crime law protecting LGB and transgender people was passed following the death the same year of Daniel Zamudio, a 25-year man who was beaten and tortured for several hours after his attackers learnt he was gay.

Protection of LGBTI people fleeing persecution abroad

Protecting LGBTI people fleeing persecution abroad entails passing three legal provisions that explicitly recognise persecution (or a well-founded fear of persecution) based on sexual orientation, gender identity and sex characteristics as a valid ground for granting asylum (one provision per ground) – see Annex 3.B.

Of these three legal provisions, 48% are in force in OECD countries as of 2019, up from 5% in 1999. Annex Table 3.C.3 reveals that one third of OECD countries provide no explicit protection of LGBTI asylum seekers (Chile, Czech Republic, Denmark, Estonia, Israel, Japan, Korea, Mexico, New Zealand, Switzerland, Turkey). In others, explicit protection is granted to LGB asylum seekers (24 countries), transgender asylum seekers (21 countries) and, to a lesser extent, intersex asylum seekers (5 countries, i.e. Australia, Canada, Finland, France and Norway).

LGBTI-inclusive immigration laws and policies are recent. Their average year of passage is 2008 for the ground of sexual orientation, 2012 for the ground of gender identity and 2015 for the ground of sex characteristics.

Existence of an LGBTI-inclusive equality body, ombudsman or human rights commission

Establishing a LGBTI-inclusive human rights institution entails passing three legal provisions that explicitly entrust this institution with assisting victims of discrimination and promoting equality based on sexual orientation, gender identity and sex characteristics (one provision per ground) – see Annex 3.B.

Of these three legal provisions, 63% are in force in OECD countries as of 2019 (i.e. nearly two), up from 5% in 1999. OECD countries with an LGBTI-inclusive equality body, ombudsman or human rights commission are typically those where antidiscrimination laws explicitly protecting sexual and gender minorities are in force (Annex Table 3.C.4). Indeed, antidiscrimination legislation usually designates or establishes a body or bodies to promote equality and combat discrimination in the fields and across the grounds it covers. These provisions establish the structure and composition of the bodies, set out their functions and accord them the powers to fulfil these functions.

Yet, exceptions exist. None of the OECD countries where no LGBTI-inclusive antidiscrimination laws exist hosts an LGBTI-inclusive human rights institution. But three of the 32 countries where such laws are in force do not associate them with the establishment of an LGBTI-inclusive equality body, ombudsman or human rights commission. The latter is the case of Chile, Israel and Spain. In the remaining 29 OECD countries, the grounds addressed by the LGBTI-inclusive human rights institution are often wider than those covered by the LGBTI-inclusive antidiscrimination legislation. This broader scope can be observed in eight OECD countries: Estonia, France, Italy, Korea, Luxembourg, Mexico, New Zealand and Poland. In France for instance, while intersex people are not explicitly mentioned by the antidiscrimination legislation, they are part of the groups explicitly supported by the national human rights institution.

LGB-specific provisions

On average, 59% of the LGB-specific provisions defined in Chapter 2 are in force as of 2019, up from 23% in 1999 (Annex Figure 3.C.2). While the national law of all countries treats different-sex and same-sex consensual sexual acts on an equal footing (or nearly so), only three countries ban conversion therapy. Spectacular progress was achieved in the following fields: legal recognition of same-sex partnerships, equal adoption rights as well as equal access to assisted reproductive technology of different-sex and same-sex couples.

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Annex Figure  3.C.2. While all OECD countries have decriminalised same-sex consensual sexual acts, only three ban conversion therapy in some of their subnational jurisdictions

Evolution of legal LGBTI inclusivity between 1999 and 2019 OECD-wide, by component of LGB-specific provisions

Note: This figure reports the share of provisions highlighted in Chapter 2 that are in force in OECD countries in 1999 and 2019, by component of LGB-specific provisions – see Box 3.2 for further details on how LGBTI inclusivity is computed.

Source: OECD questionnaire on LGBTI-inclusive laws and policies (2019).

 StatLink https://stat.link/3v8ydw

Equal treatment of same-sex and different-sex consensual sexual acts

Two types of laws violate equal treatment of consensual same-sex and different-sex sexual acts: those that criminalise same-sex conducts between consenting adults and those that establish a higher age of consent for same-sex than for different-sex sexual acts. In all 35 OECD countries covered in this report, both types of laws have been repealed (or were, in a few cases, never passed) except for one country. In Chile, although the section of Article 365 of the Penal Code criminalising homosexual acts was repealed in 1999, it still provides for a minimum age of consent for homosexual acts (18) that is different from the minimum age of consent for heterosexual acts (14). A bill is pending that would allow repealing Article 365 altogether and, hence, equalise the age of consent regardless of sexual orientation (Cámara de Diputados de Chile, 2009[17]).

Annex Table 3.C.5 presents where and when (i) homosexual consensual acts were decriminalised – in countries where they were once explicitly illegal; (ii) the ages of consent for homosexual and heterosexual consensual acts were equalised. In four countries, homosexual consensual acts were never explicitly criminalised (Italy, Korea, Mexico and Turkey). Among countries where these acts were once illegal, a majority decriminalised this conduct after 1970, although the timing varies significantly by country. France became the world’s first country to legalise same-sex sexual acts between consenting adults. Before the French Revolution, sodomy was a serious crime. Jean Diot and Bruno Lenoir were the last homosexuals burned to death on 6 July 1750. The first French Revolution decriminalised homosexuality when the Penal Code of 1 791 made no mention of same-sex relations in private. The United States was the last OECD country where homosexuality was made legal nationwide, following Lawrence v. Texas (2003), a landmark civil rights case by the United States Supreme Court. In this case, the Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in 13 other states, making same-sex sexual activity legal in every US state and territory.

Across OECD countries, the ages of consent for homosexual and heterosexual consensual acts were set equal between three to four decades after homosexuality was decriminalised. Canada was the last OECD country to ensure age of consent equality. Until 2019, Section 159 of the Penal Code set an age of consent for anal sexual acts at 18, while the age of consent for other types of sexual activity was equal to 16. Section 159 was repealed on 30 June 2019, noting that several provincial courts had independently declared Section 159 to be unconstitutional prior to 2019.

Ban on conversion therapy

Of the four countries that have banned conversion therapy on minors throughout their national territory, i.e. Brazil, Ecuador, Malta and Taiwan, none is part of the OECD21 (OutRight Action International, 2019[18]). Yet, three OECD countries ban conversion therapy on minors in some of their subnational jurisdictions. This is the case of:

• Two of the four most populous provinces in Canada: Ontario since 2015 and British Columbia (Vancouver) since 2018;22

• Three of the four most populous regions in Spain: the Community of Madrid since 2016, Andalusia since 2018 and Valencia since 2019;

• Two of the four most populous states in the United States: California since 2013 and New York since 2019, noting that, as of 30 June 2019, 14 other US states have banned conversion therapy on minors.23

Legal recognition of same-sex partnerships

Legal recognition of same-sex partnerships takes three different forms, ranging from basic (same-sex de facto partnership or cohabitation), to advanced (same-sex civil/registered/domestic partnership or civil union), to full-fledged (same-sex marriage). Legal LGBTI inclusivity related to the item “Legal recognition of same-sex partnerships” is therefore computed as follows:

• It is equal to 0 if the country does not recognise any type of same-sex partnership;

• It is equal to 1/3 if the country only recognises same-sex de facto partnership or cohabitation;

• It is equal to 2/3 if the country only recognises same-sex civil/registered/domestic partnership or civil union;

• It is equal to 1 if the country recognises same-sex marriage.

Legal LGBTI inclusivity attached to the item “Legal recognition of same-sex partnerships” is equal to 71% in 2019, up from 15% in 1999. This evolution reflects major progress (Annex Table 3.C.6). Same-sex marriage is legal in 20 OECD countries (at least in some parts of their national territory) as of 2019, while no OECD country was allowing same-sex partners to marry in 1999. Netherlands was the first country to legalise same-sex marriage (in 2001). In most other countries, marriage equality laws were passed after 2010. Moreover, nine additional OECD countries have legalised either a basic or an advanced type of same-sex partnership, as compared to only one two decades ago (Israel24). Only six OECD countries do not provide any recognition of same-sex partnerships (Japan, Korea, Latvia, Lithuania, Slovak Republic, and Turkey). Except for Turkey, these countries are characterised by a Constitution that explicitly defines marriage as the union between a man and a woman.

Equal adoption rights

In all OECD countries, different-sex partners enjoy adoption rights, meaning that they are entitled to joint-adoption as well as to second-parent adoption by one of the two partners (Chapter 2). Equal adoption rights for different-sex and same-sex couples therefore implies that:

• When one partner in a same-sex partnership is a legal parent, the other partner is entitled to become the second legal parent through adoption, assuming that there is no second legal parent registered (i.e. full second-parent adoption for same-sex couples)

• Same-sex partners are entitled to jointly adopt a child (i.e. joint adoption for same-sex couples, whereby (i) the legal relationship between the child and her/his biological parents is extinguished, and (ii) the adopting same-sex partners become the two legal parents of the child).

Of these two legal provisions, 61% are in force in OECD countries as of 2019 (i.e. around one), up from 4% in 1999. While 11 OECD countries provide no adoption right to same-sex couples, 24 grant them with access to second-parent adoption and 20 with access to joint adoption (Annex Table 3.C.7). The latter are those that have legalised same-sex marriage, which may reflect the strong commitment of these countries to the advancement of LGB rights, rather than the need to legalise same-sex marriage before being able to grant joint adoption. Indeed, the right to joint adoption is restricted to married different-sex and same-sex couples in only a minority of countries (Finland, France, Germany and Luxembourg).

Despite this commitment, the adoption process for same-sex couples in these countries remains an obstacle course marked by unique and additional challenges compared with those encountered by opposite-sex couples wanting to adopt a child (Annex Box 3.C.1).

Equal access to assisted reproductive technology

Equal access to assisted reproductive technology of different-sex and same-sex couples implies that:

• Partners in a same-sex partnership be treated on an equal footing with partners in a different-same partnership concerning access to medically assisted insemination (using sperm of a donor) or in vitro fertilisation (using donated sperm and/or egg);

• When medically assisted insemination or in vitro fertilisation is legal for both different-sex and same-sex couples, the same-sex partner be automatically recognised as the second legal parent, as would be the case for a male partner of a woman who procreates through these techniques (i.e. automatic co-parent recognition for same-sex couples);

• Partners in a same-sex partnership be treated on an equal footing with partners in a different-same partnership concerning access to surrogacy.

Of these three legal provisions, 61% are in force in OECD countries as of 2019 (around two), up from 14% in 1999. Despite this progress, only a minority of OECD countries (16) provide same-sex couples with an access to assisted reproductive technology that is fully equal to that of different-sex partners (Annex Table 3.C.8), meaning that they are treated on an equal footing with respect to each of the following dimensions: (i) access to medically assisted insemination or in vitro fertilisation; (ii) access to automatic co-parent recognition when medically assisted insemination or in vitro fertilisation is legal; (iii) access to surrogacy. Four countries fulfil two of these three conditions, and nine countries comply with only one of them. Six countries fully discriminate against same-sex couples regarding access to assisted reproductive technology: Czech Republic, Greece, Korea, Latvia, Lithuania and Poland.

Of the 21 countries that provide equal treatment in access to medically assisted insemination (MAI) or in vitro fertilisation (IVF), only one country, Turkey, ensures equality by denying access to these techniques to both different-sex and same-sex partners (by contrast, the 20 other countries ensure equality by granting access to these techniques to both types of partnerships). Indeed, since 1987 when the first regulation of assisted reproduction was published in Turkey (By-law on Centres for Assisted Procreation – Official Gazette no. 19551), third-party reproductive assistance, i.e. the use of donor eggs, donor sperm and surrogacy, is strictly prohibited.

An opposite pattern is at work regarding equal treatment in access to surrogacy: countries that ensure this equal treatment by denying access to surrogacy to both different-sex and same-sex partners are a majority (16) of the 27 countries where access to surrogacy is non-discriminatory. Surrogacy is legal for both different-sex and same-sex partners in only four countries: Canada, the United Kingdom, as well as some subnational jurisdictions in Australia and the United States. In these countries, lawfulness usually concerns altruistic surrogacy (no financial compensation of the surrogate mother beyond reimbursement for medical costs and other reasonable pregnancy-related expenses). Commercial surrogacy remains by and large explicitly prohibited, except in California and Texas (United States) and in Queensland (Australia). In a third category of countries, equal treatment of different-sex and same-sex couples is formally ensured through the fulfilment of two conditions: (i) surrogacy, at least when it is altruistic, is not explicitly illegal; (ii) joint adoption by same-sex partners is legal. The absence of unlawfulness of surrogacy implies, in principle, that the intended parents can become the legal parents, but only after the surrogate mother gives up her parental rights and the intended parents jointly adopt the child − thus there is no possibility of automatically eliminating the parenthood of the surrogate mother or of doing so through a simple “parental order” as it is the case in countries where surrogacy is explicitly legal. But legal joint adoption by same-sex partners ensures, in this context where surrogacy is not explicitly unlawful, that same-sex partners can become parents through the services of a surrogate mother in the same way as different-sex partners. Seven OECD countries belong to this third category: Belgium, Ireland, Luxembourg, Mexico (Mexico City), the Netherlands, New Zealand and Sweden.

Finally, among the 21 countries where MAI or IVF are legal (or not explicitly illegal) for both different-sex and same-sex partners, a majority grant the same-sex partner with access to automatic co-parent recognition. The five exceptions are Chile, Germany, Israel, Luxembourg and Mexico.

TI-specific provisions

On average, only 38% of the TI-specific provisions defined in Chapter 2 are in force as of 2019, up from 10% in 1999 (Annex Figure 3.C.3). Nearly all OECD countries allow transgender people to change their gender marker on birth certificates and other identity documents as of 2019, while less than half did so in 1999. Significant progress has also been made regarding expunging medical requirements from gender recognition legislation, noting that these requirements were part of all gender recognition laws 20 years ago. But improvements have been extremely modest in the following fields: not categorising being transgender as a mental illness in national clinical classification; availability of a non-binary gender option on birth certificates and other identity documents; and postponing medically unnecessary sex-normalising treatment or surgery on intersex minors.

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Annex Figure 3.C.3. Despite a surge in the number of countries that have passed gender recognition laws, legal inclusion of transgender and intersex individuals remains limited

Evolution of legal LGBTI inclusivity between 1999 and 2019 OECD-wide, by component of TI-specific provisions

Note: This figure reports the share of provisions highlighted in Chapter 2 that are in force in OECD countries in 1999 and 2019, by component of TI-specific provisions – see Box 3.2 for further details on how LGBTI inclusivity is computed.

Source: OECD questionnaire on LGBTI-inclusive laws and policies (2019).

 StatLink https://stat.link/lipun1

Depathologising being transgender

Depathologising being transgender entails three policy actions: (i) not categorising being transgender as a mental illness in national clinical classification; (ii) allowing transgender people to change their gender marker on birth certificates and other identity documents; (iii) attaching no medical requirement to legal gender recognition.

According to Annex Figure 3.C.3:

• Legal LGBTI inclusivity attached to the item “Being transgender not a mental illness” is equal to 14% as of 2019, which means that being transgender was removed from the list of mental illnesses in national clinical classification in only five OECD countries (this declassification was effective in no country in 1999);

• Legal LGBTI inclusivity attached to the item “Legal gender recognition” is equal to 95%, which indicates that a large majority of OECD countries (34 of 35) allow transgender people to change their gender marker on birth certificate and other identity documents at least in some parts of their national territory (this was the case of only 17 countries in 1999);

• Legal LGBTI inclusivity attached to the item “Legal gender recognition with no medical requirement” is equal to 37%, which denotes that a minority of OECD countries (14 of the 34 countries where gender recognition is legal) attach no medical requirement to this process at least in some of their subnational jurisdictions (no country had demedicalised this process in 1999).

Only a small minority of OECD countries (five) fully depathologise being transgender, which means that they comply with each of the three items mentioned above, although not always throughout their national territory (Annex Table 3.C.9). These countries are Canada, Denmark, France, Spain and the United States. Eleven countries fulfil two of these three conditions, and 18 countries comply with only one of them. In one country, Lithuania, being transgender is still fully pathologised, meaning that the law does not even permit transgender people to change their gender marker on birth certificates and other identity documents. The decision whether to grant this right, and under which conditions, is addressed by courts on a case-by-case basis, after the transgender person has filed a petition.25

The removal of being transgender from the list of mental illnesses in national clinical classification is effective in five OECD countries.26 In 2010, France became the first country worldwide to proceed to this declassification (Government order n°2010-125 of 8 February 2010). It was followed by the United States in 2013, when “gender identity disorder” was dropped from the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) maintained by the American Psychiatric Association. A new condition called “gender dysphoria” was added to diagnose and treat those transgender individuals who felt distress at the mismatch between their identities and their bodies. The new diagnosis recognised that a mismatch between one’s birth gender and identity was not necessarily pathological. It shifted the emphasis in treatment from fixing a disorder to resolving distress over the mismatch. In 2014, the Canadian Psychiatric Association adopted DSM-5. In 2016, citing a lack of progress of a pending decision by the World Health Organization (WHO) to remove transgender identity from its list of mental illnesses, the Danish Parliament voted for a unilateral change and removed transgender identity from the National Board of Health’s list of mental illnesses. This decision came into effect in 2017. Finally, starting from the mid-2010s, several autonomous regions of Spain, including the four most populous, have adopted a set of laws “guaranteeing the rights of LGBTI people” in which the health care system is forbidden from referring to being transgender as a pathology. This trend towards removing being transgender from the list of mental illnesses in national clinical classification should accelerate in the near future. Indeed, in 2019, the Member states of the World Health Organization adopted the eleventh edition of the International Classification of Diseases (ICD-11) that removed “gender incongruence” from the list of mental health disorders, noting however that Member states are free to adjust to ICD-11 at their own pace.

The change of gender marker on birth certificates and other identity documents is legal in at least some of the subnational jurisdictions of 34 of the 35 countries covered in this report. In a majority (21), legal gender recognition is conditioned on medical requirements in at least some parts of their national territory. Among those countries, sterilisation is explicitly required in five countries (Czech Republic, Finland, Japan, Korea and Turkey), while sex-reassignment surgery and/or treatment that can lead to sterilisation is a precondition to legal gender recognition in ten others (Australia, Israel, Italy, Latvia, New Zealand, Poland, Slovak Republic, Slovenia, Spain and Switzerland). Legal gender recognition is based solely on a mental health or “gender dysphoria” diagnosis in six countries: Austria, most provinces of Canada except for Alberta and Quebec where legal gender recognition is based on self-determination (see Section 3.3.2), Estonia, Sweden, the United Kingdom and most states in the United States.

In the remaining 13 countries, legal gender recognition necessitates no medical requirement. This situation typically results from amendments to the original legal gender recognition law that by and large occurred after 2015, under pressure from international and regional human rights stakeholders (Chapter 2). On average, these amendments took place in 2017, several decades after legal gender recognition laws have been passed in these countries.

Allowing a non-binary gender option on birth certificates and other identity documents

Legal LGBTI inclusivity attached to the item “Non-binary gender option on birth certificates and other identity documents” is equal to 19% as of 2019, which reflects that eight OECD countries allow for such an option, at least in some parts of their subnational jurisdictions (only two countries did so in 1999): Australia (New South Wales), Austria, Canada (Alberta, British Columbia and Ontario), Germany, Iceland, Netherlands, New Zealand and the United States (California and New York – New York City to be precise). In most of these countries, the legalisation of a non-binary option occurred recently, after 2015.

The use of a non-binary gender option is reserved to intersex individuals in Austria, Germany, Netherlands and New Zealand. In the Netherlands and New Zealand, it is possible since 1995 to state on a birth certificate “sex cannot be determined” or “sex indeterminate” when the sex of a newborn is unclear.27 Austria and Germany go a step further by granting access to a non-binary gender option called “diverse” to all intersex individuals since 2018 and 2019 respectively. In other words, intersex adults who were assigned as female or male at birth can change this gender marker to “diverse”. Both intersex and non-binary transgender individuals have access to a non-binary gender option in the remaining jurisdictions. This option is called “non-specific” in New South Wales (2014), “X” in Alberta (2018), British Columbia (2018), Ontario (2018), Iceland (2019) and New York City (2018), and “non-binary” in California (2019).

Postponing medically unnecessary sex-normalising treatment or surgery on intersex minors until they can provide informed consent

International human rights stakeholders are exerting increased pressure on their Member countries to postpone medically unnecessary sex-normalising treatment or surgery on intersex minors until they can provide informed consent. They all call for governments to ban these practices.

But a legal ban is not the only option and there is a range of actions countries can take to positively address this issue. For instance, publishing guidelines that urge medical practitioners to refrain from performing non-consensual normalisation surgery on intersex minors is one such possibility. Most importantly, it is critical to proactively engage in preparatory steps aimed at gathering support for guidelines or laws banning unconsented non-vital medical interventions so as to ensure proper enforcement of these bans. These preparatory steps include (i) inquiring into the treatment of intersex minors in order to show the extent to which unconsented medically unnecessary sex-normalising treatment or surgery are performed on intersex minors; (ii) increasing acceptance of intersex individuals among the general public so as to alleviate the social pressure for categorising a newborn as either female or male; (iii) consulting with all stakeholders, chief of which are intersex people, parents and medical practitioners in order to build consensus around a set of recommendations that serve as a starting point to a nationally consistent human-rights based approach to decision-making about medical interventions on intersex minors.

In this framework, legal LGBTI inclusivity for the item “Postponing medically unnecessary surgery on intersex minors” is equal to:

• 0 if the country has taken no significant step in this direction;

• 1/3 if the country is engaged in one or several of the preparatory steps aimed at gathering support for guidelines or laws explicitly banning unconsented non-vital medical interventions on intersex minors;

• 2/3 if the country has published guidelines that explicitly urge medical practitioners to refrain from performing non-consensual normalisation surgery on intersex minors;

• 1 if the country has passed laws explicitly prohibiting medically unnecessary sex-normalising treatment or surgery on intersex minors.

Legal LGBTI inclusivity attached to the item “Postponing medically unnecessary surgery on intersex minors” is equal to 24% as of 2019 which reflects that the protection of intersex minors is still in its infancy in OECD countries: on average, OECD countries lie between inaction on the issue and engagement in one or several of the preparatory steps mentioned above.

More precisely, 16 OECD countries are active on that issue (Annex Table 3.C.10). Among them, only two countries have passed laws explicitly prohibiting medically unnecessary sex-normalising treatment or surgery on intersex minors, at least in some of their subnational jurisdictions: Portugal and Spain.