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Lee Davies

Law and Legal Studies, University of Birmingham

Thesis title:

?Coercive and Discriminatory: Rethinking the ECtHR?s Approach to Legal Gender Recognition?s prerequisite of sterilisation?

Eight Member States to the European Convention on Human Rights currently enforce surgical sterilisation as a prerequisite to legal gender recognition (LGR). This thesis seeks to situate this requirement within Foucault’s conceptual framework of ‘Biopolitics’, emphasising the disciplinary nature of the interference as a process of purging non-normative identities from the Bios, and the elements to the biopolitical framework which coerce trans persons to engage with its processes. The project will go on to examine the resistive legal responses challengnig this phenomenon, with a particular focus on human rights efforts under the Convention. 

While noting that sterilising prerequisites have been successfully challenged under Article 8 of the Convention (the Right to Private and Family Life), it is claimed that the non-absolute nature of this provision, its partial reliance upon European consensus to determine its scope, and the potential for states to perpetuate violations on account of its lack of international stigma, fail to provide effective protection for trans persons seeking LGR. Accordingly, this thesis explores the possibility of trans advocacy engaging with Article 3 (the Prohibition on Inhuman, Degrading Treatment and Torture) in the future, which it is contended, carries the benefit of capturing the physical and psychologial harm inflicted by coercive sterilisation in a manner which Article 8 is ill-equipped to do. Additionally, Article 3 is an absolute porovisison which is not subject to limitation or derrogation, and carries a weighty international stigma which contributes to high rates of compliance with the Court on matters concerning findings of violation. 

The overall aim of this thesis is to demonsrate that Article 3, both in doctrine and spirit, provide a substantial benefit to trans persons seeking to challenge abusive LGR prerequisites, over that of the current approach taken under Article 8. The hope is to produce a template for such advocacy, such to secure concrete protections for the dignity of trans persons, who unfortunately already suffer from a marginalised social position.

Research Area

  • Human Rights
  • Law and Legal Studies

Other Research Interests

I am currently working on journal articles on the following subjects:

  • The necessity of LGR procedures in the context of European incarceration - focusing on the trans experience of prison, the harm which may result from inadequate provisions for manging gender recogntion and safety accomodating trans persons during their imprisonment, analysing the implications Article 3 of the Convention in this area. 
  • Appraising the recent shift in the fifteenth edition of the 'Judicial College Guidlines for the Assessment of General Damages in Personal Injury Cases', toward gender equality in damages for injuries causing sterility and facial scarring, utilising a feminist analysis to examine the interaction of these changes with the percieved role of women as aesthetic objects and their restriction to the role of reproduction, contending that the equalisation of damages is a positive step in dismantling harmful stereotypes.
  • Does the conceptualisation of domestic abuse as definitionally 'male-perpetrated' prevent adequate responses from law enforcement and support services to male victims, and how could this be remedied as a 'pareto improvement', that is to say, without compromising on the necessary protection of vulnerable women?