Near the end of bisexuality in Belgian law?

Carte Blanche of Aymeric de Lamotte, Deputy Director General of the Thomas More Institute, attorney and local elected official

The so-called “transgender” law is not comprehensive enough

Belgium is on the eve of the legal abolition of one of its key anthropological landmarks: bisexuality. The June 25, 2017 “Transgender” Law – which directly amends the Civil Code – aims to facilitate the procedures for registering a change of gender in civil status documents by removing the obligation to meet certain medical conditions. Thus generalizing specified the reason for its existence: “It is based on the principle of self-determination. This means that the person in question decides entirely for himself how he feels and that no one has to make a medical diagnosis regarding his gender identity.“However, some LGBTQI+ associations considered that this law was not yet comprehensive enough. Gender and first name – the associations deny that you can only change once – and are clearly only offering to change from one gender to another – and so they deplore the inequality treatment Between transgender people whose gender identity is reformed and those whose gender identity is fluctuating.

The Constitutional Court proposes two possibilities

On June 19, 2019, the Constitutional Court issued a final ruling approving the association’s appeal on the grounds of violating the principle of equality, which is governed by Article 10 of the Constitution, and the right to self-determination. From Article 22 of the Constitution and Article 8 of the European Convention on Human Rights, both of which relate to the right to privacy. In its decision, the Belgian court referred to the ruling AP, Boye and Nicot J. France of April 6, 2017 of the European Court of Human Rights, which has repeatedly affirmed that the concept of “private life” is broad, not subject to an exhaustive definition, and covers not only the physical and moral integrity of the individual, but also sometimes aspects of his physical and social identity. Unsurprisingly, we find the so-called “evolutionary” interpretation, adopted for a long time by many European courts including the European Court of Human Rights, according to which the text must be interpreted and applied by adapting it to changes over time, changes in society, customs and mentalities – the reason these courts are sometimes adorned with the nickname “the government of judges.” They were considered by the Belgian investigators Geoffrey Grandjen and Jonathan Wildemrich.senior politicians“, In this “Interpretation of the law becomes a matter of convenience and judges turn out to be initiators of new standards” (1). Former judge of the European Court of Human Rights, Françoise Tolkens, is aware that this interpretation may lead to “A right that was not originally included“. The Constitutional Court found that the law would make a loophole, in that unconstitutionality would relate to “No comparable possibility in legislation to amend sex registration on the basis of non-binary gender identity. Gender as part of an individual’s civil status.

It seems that the right to self-determination is a defender

There is good reason to fear that the legislator will defend this second option. Indeed, on the one hand, at the political level, the so-called “transgender” law was already based on the principle of self-determination. Additionally, in 2020, during the Policy Brief, the current Secretary of State for Gender, Equality of Opportunity and Diversity, French-speaking ecologist Sarah Schlitz, said she wanted to study “Possibility to make gender selectors optional or invisible in all cases where they do not need to be used”. Academically speaking, Yves-Henri Lillieu, Dean of the Faculty of Law at the University of Liege, is very clear:Before approaching the law of persons and family from its artistic angle, we must define its subject and reveal our doctrine, an act of belief in self-determination. (…)”. Moreover, a new creation Categories Will this really respect the principle liquidity Who strictly rejects funds and assignments? Finally, the zeitgeist is enthusiastically begging in favor of this second option. In fact, as Quebec sociologist Mathieu Boc-Côté points out in his recent book Racist revolution and other ideological virusesphenomenon schism It is the great contemporary western passion. The fact that the word sex Henceforth systematically preferred to the word sex It is moreover one of the signs of will Liberation For reality, to build a world detachment from reality. Concretely, this means erasing the occurrence of “sex” from civil law, and in the process, from all Belgian laws, because “sex” always refers toanatomyand therefore only the man And wife. The most ruthless militants of the awakened left will have won their bet: to extract once and for all from our legal arsenal all traces of sexual reality. However, realizing this charming perspective is complicated by the fact that hiding gender logically provokes the struggle against discrimination against women and all policies directed specifically at women – both paradoxically promoted by the same thing. Let’s not talk about trips abroad that often require identification of belonging to one or another gender.

Intersex: a biological fact and a condition for living together

On the other hand, intersex is a biological, anatomical and scientific certainty: almost all the world’s population is born male or female and try to build their individuality from this given; And the small minority who are born intersex are well cared for by medication soon after birth. Respecting an adult’s freedom of choice to change their sex is one thing, as Belgian law has already allowed since 2007; Erasing the reality of the intersex that constitutes the existence of nearly all of humanity is another matter entirely. The law cannot extract itself from reality and create an alternative. It is not a laboratory for a highly deconstructive combative minority among the population or academic fads. The great essayist Philip Murray identified that this sex difference was “Minimal service of the mind“And that no government in history, even the worst, has given up on it. On the other hand, it is one of the conditions for the possibility of a common life, as recognized by the French Court of Cassation in 2017 with its order that bisexuality”It pursues a legitimate goal, because it is necessary to the social and legal organization, of which it is a constitutive elementThe courts assess whether the exercise of fundamental rights is carried out in a manner proportionate and with respect for the other rights involved. The French Court of Cassation held that the right to self-determination breaks the delicate balance between different necessities, in this case respecting the right to privacy and social and legal organization From a community – in less cold terms live together – The latter is violated. This is considered that Poetry Individuals, margins can not be threatened possibility From this life together. In his main book, of the social contractJean-Jacques Rousseau already distinguished the general will that “We only look at the common interest“The will of all, which is just a set of individual desires. Unfortunately, the Belgian Constitutional Court has not been inspired by the wisdom of this legal reasoning. However, through its simplicity and the immediate visual recognition of gender, the duality of the sexes facilitates the occurrence of exchange between beings and thus civilized company. When I arrive at a professional meeting with a woman, I can confidently send her “hello madam,” without risking my misunderstanding. However, if the two sexes are eclipsed, tomorrow it will be difficult to approach the woman who looks like a woman and man Who looks like a man Without risking offending a sentiment or that? Who hasn’t seen this footage from the show? freeze frames Lt. Col. Daniel Schneiderman would like to presentfour men‘Rounds the table but someone cuts it off and replies in shock:’Oh no, I’m not a man, sirIndeed, this man considers himself a non-binary. But how can we know, when he exhibits this physical appearance of a man and a full beard and a short haircut first. What term can we still find tomorrow to give the verbal exchange when all is Individually ? Ladies and gentlemen, they will be considered junk from a bygone era and fall by the wayside after Mademoiselle. A society that no longer has cornerstones or load-bearing walls is not only disorganized, but an uncivilized society andanimal. It took Europe centuries to weave a relative harmony between beings, let us not rush into tomorrow’s struggles.

An anthropological issue of such importance requires discussion

The Constitutional Court identifies the gap (including the lack of dualism in the law), but is – fortunately – careful not to overstep its jurisdiction by leaving full discretion to the legislator on how to bridge it. Thus, the two possibilities, including the principle of self-determination, are only I suggested by the court; Its legislative power has not been usurped. Including a non-binary does not mean a clean scan of a binary. The aim of this paper is not to make a decision in place of the legislator, but to alert politicians and citizens to the unprecedented change, of a revolutionary nature, in the history of civilized humanity looming over us. Is it correct in a democracy that this should not be the subject of public and political debate? Is Parliament a simple ratification chamber for the Constitutional Court, or is it a lair in which enlightened consciences decide the fate of a nation?

=> (1) Grandjean, G., and Wildemeersch, J., Judges: Policymakers? Essays on the political power of judges in the exercise of their functions, Broilant, Brussels, 2016.

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