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13. Sexual Orientation, Gender Identity and Sex Development

Senior Advisor

Ingrid Egeland Thorsnes is currently deployed as a Seconded National Expert for the Norwegian Resource Bank for Democracy and Human Rights (NORDEM). In 2016, she wrote the report ‘The Rights of LGBTI Children in Norway in the light of the UN Convention on the Rights of the Child’ for the organisations Save the Children and The Norwegian LGBT Organisation Fri. Her other publications include Klageordning til FNs barnekonvensjon - nei takk? [A Complaints Mechanism to the UN Convention on the Rights of the Child – No thanks?] in Kritisk Juss, no. 4 (2014).

This chapter explores the realisation of children’s human rights related to sexual orientation, gender identity/expression and sex characteristics in Norway. When children explore their identity and sexuality in ways that challenge the heteronormative understanding of society, they can be met with a number of informal sanctions, such as discrimination, exclusion and bullying. Drawing on quantitative and qualitative evidence, the chapter examines discrimination, violence (including bullying and harassment), health, and education. It shows that even though Norway has come a long way when it comes to diversity and equal rights, significant challenges remains for children challenging predominant conceptions of gender, sexuality and sex development.

Keywords: children’s rights, sexual orientation, gender identity and expression, sex development, discrimination

13.1 Introduction

13.1.1 Challenging the heteronormative society

What I have found hardest, and then I consider both the homosexuality and the transgender identity, is the loneliness. To be so fundamentally different from the other children, and to hide something like this inside over time, to feel like a deviant – without having done anything for it to be this way. It is lonesome.1

From an early age, children can fall in love or be attracted to another child of the same gender (D’Augelli and Grossman, 2001), or experience that the sex they were assigned at birth does not reflect their gender identity (Olsen et al., 2015). Moreover, some children are born with bodily features that make the body neither typically male nor female (Grasmo and Benestad, 2017). Throughout history, and still in many countries, persons who act, feel or look in a way that challenges traditional conceptions of gender, sexuality and sex development have been sanctioned, in the most extreme cases by law and punishment (see e.g. Carroll and Mendos, 2017), but also in many societies by social sanctions like bullying and lack of fundamental rights (see, e.g. FRA, 2013).

An important aspect and cause of these challenges is the heteronormative understanding of society. Heteronormativity is the assumption that all people are heterosexual men or women as they were registered at birth, and that this is the default or ‘normal’ state of a human being (see e.g. Kitzinger, 2005). When children explore their identity and sexuality in ways that challenge this understanding, they can be met with a number of informal sanctions, such as discrimination, exclusion and bullying. Even though Norway has come a long way when it comes to diversity and equal rights in this field (ILGA, 2017), there is still reason to believe that challenging predominant conceptions of gender, sexuality and sex development can have negative consequences for children in some areas (Thorsnes, 2016).

This chapter will discuss four main areas where LGBTI children face particular challenges, namely discrimination, violence, including bullying and harassment, health and education. These topics are by no means the only relevant issues to be discussed in this context, and several other topics, including the right to identity, could have been discussed in a project with a broader scope.

13.1.2 Definitions and terminology

In accordance with the United Nations Convention on the Rights of the Child (CRC)2 Article 1, a child is any person under the age of 18. Children can be aware of their gender identity and possible conflicts with their assigned sex from early childhood (Olsen et al., 2015), and when it comes to sexual orientation, children often become aware of their attraction towards others in early puberty (D’Augelli and Grossman, 2001). For intersex children, their condition is present at birth (Grasmo and Benestad, 2017).

The acronym LGBTI, and sometimes LGBTIQ, meaning lesbian, gay, bisexual, transgender, intersex and queer, is often used when referring to people who challenge traditional conceptions of gender, sexuality and sex development.3 This acronym and the different terms it consists of will also be used in this chapter. However, it is important to keep in mind that many children, due to their young age, do not identify as lesbian, gay, bisexual, transgender or queer. Many intersex persons neither identify with this term nor the LGBTI movement as such (van Lisdonk, 2014). Hence, there is still a need to clarify the meaning of the terminology as it is frequently used in relevant sources on this topic.

The term lesbian is used to describe girls/women who are attracted to other girls/women, while gay could be used to describe any gender, but is most commonly used to describe boys/men who are attracted to boys/men. Bisexual is used to describe persons who can be attracted to persons of any gender. A transgender person is someone who has a different gender identity than the one they were assigned at birth. Intersex is used to describe a person who is born with unclear sex characteristics. The term intersex will be further explained in section 4 of this chapter.

13.1.3 The numbers

Estimating the number of children who are lesbian, gay, bisexual, transgender or intersex is not possible. Many children and youths will use time as adolescents and young adults to figure out questions concerning sexual orientation and gender identity. Rather than putting tags on children’s sex, gender, identity or sexual orientation, the main focus of this chapter is the structures and norms in society that affects the realisation of children’s human rights.

Still, some statistics do exist, indicating the scope of diversity in sex development, sexual orientation and gender identity/expression. Between 4–6% of the Norwegian population (adults) have had homosexual experiences, while this does not necessarily reflect a homosexual or bisexual identity (Grünfeld and Svendsen, 2013). According to the annual report from the National Treatment Service for Transsexualism, 441 persons were referred to the service for evaluation related to gender identity issues in 2016, of whom 45% were children.4 Seventy-five per cent of the patients were given treatment. Between 10 and 15 children are diagnosed as intersex5 in Norway every year (Grasmo and Benestad 2017).

13.1.4 Methodology and sources

This chapter will discuss the level of implementation of the human rights of children challenging norms for gender, sexuality and sex development in Norway. The methodology employed combines the traditional legal method with qualitative and quantitative studies and sources.

The legal benchmarks for each section (discrimination, violence, health, education) will be established based on the obligations in the Convention on the Rights of the Child,6 with reference to the opinions and recommendations of the Committee on the Rights of the Child. The General Comments given by the Committee are not legally binding, but according to the Norwegian Supreme Court, General Comments can be important legal sources when interpreting the state's obligations under the Convention.7

Other international human rights conventions, in particular the European Convention on Human Rights,8 will also be used in interpreting the specific rights of the CRC. Moreover, the Yogyakarta principles provide guidance on how human rights standards should be used in relation to LGBTI issues.9 These principles are set forth in a soft-law document, which is based on established human rights standards and was developed on the initiative of the UN High Commissioner for Human Rights.

The level of implementation at the national level will be assessed by an analysis of the degree of legal and institutional commitment to the rights of the child, the general and specific realization of the rights and the quality of steps taken to address particular areas of concern. The quality of the measures is assessed by how well they contribute to the realization of the rights of the child. The degree and quality of commitment and realization will be decided by evaluating legal and policy documents, as well as existing research and analyses provided by monitoring mechanisms such as the Norwegian Equality and Anti-Discrimination Ombud and civil society organizations.

13.1.5 Indicators

When assessing the level of implementation of children’s human rights in the areas of discrimination, violence (including bullying and harassment), health and education, important indicators include: existence of legal protection against discrimination and harassment; number of complaints of discrimination; access to remedies; reports of experienced bullying; level of medical self-determination; access to necessary health care and awareness and competence in educational institutions and teachers. While such indicators can be important in measuring the level of implementation of children’s rights, they must be read in conjunction with other sources and relevant information and it is important to be aware of what they tell us – and what they do not.

13.2 Discrimination

13.2.1 The prohibition against discrimination

Article 2(1) of the CRC obliges the state to respect and ensure the rights set forth in the Convention without any form of discrimination:

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

The Convention does not mention discrimination on the grounds of sexual orientation, gender identity/expression and sex characteristics, but the UN Children’s Committee has stated that they consider sexual orientation, gender identity/expression and sex characteristics as “other status” in relation to Article 2.10 This understanding is also in line with the interpretation of the prohibition against discrimination in Article 14 of the European Convention of Human Rights.11 On the occasion of the International Day against Homophobia, Biphobia and Transphobia in 2015, the Children’s Committee, together with a number of international human rights bodies gave the following statement: 12

Around the world, children and young people who are lesbian, gay, bisexual, transgender (LGBT) or intersex, or seen as such, still face stigma, discrimination and violence because of their perceived or actual sexual orientation and gender identity, or because their bodies differ from typical definitions of female or male.

Generally, not all differentiation of treatment will constitute discrimination, ‘if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.’13 Even though the CRC does not explicitly mention such criteria, a reasonable understanding of the convention will include similar limitations (Heyerdahl 2016). Discrimination can be both direct and indirect: While direct discrimination is a situation of different treatment based on a ground such as sexual orientation or gender identity, indirect discrimination can occur when two persons are treated alike while their situations are significantly different. 14 Discrimination might also occur at a structural level, meaning that systems or services are organized in a manner that results in discriminatory effects. In this section the focus is on discrimination at the individual level, while the following sections concerning health and education also have the perspective of structural discrimination, for example when it comes to lack of accessible health care for transgender children.15

Furthermore, children can be discriminated against on more than one ground, also called intersectional discrimination. For example, being both gay and having a disability might lead to particular challenges and possible discrimination. Intersectional discrimination of LGBTI children is specifically mentioned in the 2015 statement from the CRC Committee, where it is highlighted that states “should also address intersectional discrimination and violence against LGBT and intersex youth on the basis of race and ethnicity.”16

13.2.2 The right to an effective remedy

An 'effective remedy' is the opportunity to have a question of a human rights violation, such as discrimination, tried before a court or tribunal, and to have the possibility of receiving compensation in the case of a human rights violation. While the CRC does not contain an explicit right to an effective remedy, unlike the European Convention of Human Rights in Article 13, the Committee has stated that an effective remedy is necessary to ensure the effective fulfilment of the rights of the Convention.17 The importance of effective remedies for realising the rights set out in the convention is also the basis for the establishment of the Optional Protocol to the CRC on an Individual Complains Mechanism.18

In a judgment from 2012, the Norwegian Supreme Court found that the Convention does not contain such a requirement.19 The Court’s judgment and the Committee’s statement are in direct contradiction, which makes the legal situation at the national level uncertain. Whether or not this is a legal obligation to provide children with effective remedies for human rights violations, it is clear that the access to such remedies would strengthen the actual fulfilment of the rights of the Convention.

13.2.3 Legislation and enforcement

The Norwegian Equality and Anti-Discrimination Act20 prohibits discrimination and harassment on the grounds of sexual orientation and gender identity/expression. The law is enforced by the Equality and Anti-Discrimination Tribunal. The Equality and Anti-Discrimination Act protects children as well as adults, and is broader than the prohibition of discrimination in the CRC, as the law is not limited to the rights of the Convention but is applicable in all areas. The Act does not explicitly prohibit discrimination against intersex children, but their protection follows clearly from the preparatory texts.21

Since 1 January 2018, the Equality and Anti-Discrimination Act has been enforced by the Equality and Anti-Discrimination Tribunal.22 Before this date, the prohibition against discrimination was enforced by the Equality and Anti-Discrimination Ombud, a quasi-judicial body that provided statements and recommendations in individual cases.23 Information about cases of discrimination for this chapter was collected when the Ombud was still enforcing the now repealed Act on Prohibition of Discrimination on the grounds of Sexual Orientation, Gender Identity and Gender Expression.

The Ombud handled individual complaints of discrimination from children and adults. Few children got in touch with the Ombud, but some parents contact the Ombud in order to obtain guidance in cases concerning discrimination. Between 1 January 2014, when the Discrimination Act came into force, and January 2017, the Ombud received about 15 requests for guidance concerning LGBT children.24 The requests provide examples of possible discrimination, such as bullying on the ground of gender identity/expression, transgender children who are not allowed to change their name in line with their gender identity, and children who want their recorded name and gender on their diplomas to reflect their gender identity.

Only three of the 15 cases were handled as complaints, and two of them concerned the same child. Two of the complaints were against a hospital, 25 while the third was against a webpage spreading misinformation about homosexuality.26 One of the complaints against the hospital was rejected on admissibility grounds, and in the other two the Ombud found no violations.

Three cases during a period of three years with no violations in any of the cases does not tell us anything about the level of discrimination based on sexual orientation or gender identity experienced by children. Even though the Equality and Anti-Discrimination Act protects children as well as adults, the complaints mechanism is a system made for adults, and children are not allowed to file complaints without the consent of their legal guardians. 27 Therefore, the available data does not tell us anything meaningful about the level of discrimination.

While children cannot complain without the consent of their parents, they can, paradoxically, at the same time be employed from the age of 15, c.f. the Working Environment Act,28 as well as be punished under the General Penal Code from the age of 15.29 Moreover the possibility should be taken into account that some parents may react negatively to their children’s openness about sexual orientation, gender identity or sex development. In such situations, it would seem unlikely that these parents would support them in a case before the Tribunal.

In 2017, the Government adopted two important legislative and administrative changes in the field of non-discrimination; a new, common discrimination act for all protected grounds of discrimination, the Equality and Anti-Discrimination Act, as well as a new act concerning the work of the Ombud and the Tribunal. Discrimination and harassment against children were not discussed in relation to the new legislation, neither were issues concerning complaint mechanisms for children. This has been criticized by several actors including Save the Children,30 and shows that the focus on children’s rights is not mainstreamed in the Government’s approach to non-discrimination issues.

13.2.4 National action plan

In 2016, the Government launched a new action plan against discrimination based on sexual orientation, gender identity and gender expression – Safety, Diversity, Openness.31 The action plan places a strong emphasis on children’s rights, with particular focus on intersectionality and the importance of combatting discrimination and harassment through increasing the level of knowledge among professionals working with children. However, the action plan received criticism from civil society for being vague and not containing new actions. The LGBTI organizations Fri and Queer World found the action plan to be more of a description of what the Government is already doing in the field, with only occasional and vague new proposals.32

13.3 Violence

13.3.1 The prohibition of violence against children

Article 19 of the CRC obliges the state to protect the child from all forms of physical or mental violence:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

In General Comment No. 13, the Committee states that “violence” in Article 13 should be interpreted widely, and the term includes mental violence, such as “Insults, name-calling, humiliation, belittling, ridiculing and hurting a child’s feelings”.33 The Committee underlines that Article 19 must be read in conjunction with Article 2 (non-discrimination), and finds that state parties must address discrimination against vulnerable or marginalized groups of children, such as LGBT children.34 These forms of ill treatment can be described as harassment, which is also considered a particular form of discrimination, and can be defined as any improper and unwelcome conduct that has or might reasonably be expected or be perceived to cause offence or humiliation to another person.35

The term harassment is also used in the Yogyakarta Principles, where children’s vulnerability for bullying and harassment in the educational setting is particularly highlighted. In Principle 16 para E, it is recommended that states shall ensure protection for students of different sexual orientations and gender identities against all forms of social exclusion and violence within the school environment, including bullying and harassment.

13.3.2 Children experiencing violence

Harassment and bullying

National studies indicate that young people who challenge the traditional conception of gender and sexuality can be more exposed to bullying and harassment, including sexual harassment, than the population in general (Roland and Auestad 2009, Van der Ros 2013). Roland and Auestad (2009) did a nation-wide survey in Norway about bullying and sexual orientation among 3 046 students in the 10th grade. The students replied anonymous to a web-based questionnaire. The study found that 48% of gay boys and 23.8% of bisexual boys experienced bullying two or three times a month, compared to 7.3% of the heterosexual boys. Similarly, 17.7% of the lesbian girls and 11.5% of bisexual girls had been bullied, compared to 5.7% of the heterosexual girls. Even though the numbers are uncertain due to few LGB respondents, there is reason to believe there is a link between the experienced bullying and the children’s sexual orientation (Anderssen, 2013).

In a qualitative study from 2013 called Alskens folk (“All Kinds of People”) by Janneke van der Ros, many of the 19 transgender informants describe bullying and strong pressure to appear more in line with traditional gender norms. The main research question addressed in the study is how transgender experiences frame their living conditions and quality of life. In the study, a transgender man describes this experience from when he was in 5th grade, identifying as a boy, but feeling pressured to keep appearing as a girl (my translation):

It was when I hit puberty that everything began going to hell /.../, I also got bullied a lot. When I started 5th grade, I thought; either I'll be a girl, or I'll die. Then I bought pink clothes, a pink sweater and tight pants. When I went to class I got a standing ovation.

The experience shows clearly the strong expectations from his peer and teacher, and how he is rewarded for dressing in line with gender norms that are in breach with his own gender identity.

Findings concerning bullying at the national level are also supported by a comprehensive Europe-wide survey conducted by the EU Agency for Fundamental Rights (FRA),36 finding that at least 60% of LGBT respondents had personally experienced negative comments or conduct at school because of their sexual orientation or gender identity. Eighty per cent had witnessed negative comments or conduct as a result of a schoolmate being perceived as LGBT. The survey also found that two out of three LGBT children hid their LGBT identity while at school.

Moreover, ‘fag’ (‘homo’ in Norwegian) is a frequently used defamation among Norwegian school children (Anderssen, 2013). Girls are also name-called ‘lesbians’ in a derogatory fashion, but it is less used than the male equivalent. The use of these words as in a defamatory way is indicative of negative attitudes towards being gay. According to Grønningsæter et al. (2013), the higher frequency among boys can also indicate that being a gay boy is a stronger breach of gender norms than being a lesbian girl. The same article points to heteronormativity as one of the root causes of bullying and harassment based on sexual orientation, meaning that children are punished by their peers for challenging traditional norms for gender and sexuality.

Domestic violence

A qualitative study concerning transgender persons (Van der Ros, 2013) and a quantitative study concerning gay and lesbian youth (Moseng, 2007) indicate that children challenging norms for gender and sexuality can be more vulnerable when it comes to domestic violence than children in general. Moseng (2007) also finds that gay and lesbian children are more often in contact with the Child Protection System. Gay and transgender youth in Sami families are in particular vulnerable to violence in the family according to qualitative studies by Grønningsæter, Backer and Nuland (2009) and Van der Ros (2013). Other qualitative studies also indicate that children of immigrants and refugees are subjected to harassment, violence and force from their families and ethnic group (Elgvin, Bue og Grønningsæter, 2014). However, more research is needed to assess how the correlation between violence and sexual orientation or gender identity/ expression should be understood (Fjær, Mossige and Gundersen, 2013).

13.3.3 National law and policy

Civil law

Discrimination and harassment on the grounds of sexual orientation, gender identity or expression is prohibited in the Sexual Orientation Anti-Discrimination Act and the Education Act.37 Since 1 January 2018, the latter includes a zero-tolerance policy against all forms of bullying, violence, discrimination, harassment and other violations, cf. Section 9 (A-3). Furthermore, all schools shall promote a good psychosocial learning environment for all children, cf. the Education Act Section 9(A-2). If a student or parent requests measures concerning the psychosocial environment, including measures against offensive behaviour such as bullying, discrimination, violence or racism, the school is obligated to make a decision on what measures should be used. If the school has not taken steps within a reasonable time, a complaint can be made to the County Governor.

Criminal law

Violence is prohibited in the General Penal Code, and domestic violence including violence against children is particularly regulated in Sections 282 and 283. According to Section 77, it is considered an aggravating factor if the criminal offence is motivated by the victim’s homosexual orientation. The formulation in the Section 77 does not protect bisexual, transgender and intersex persons explicitly, but could be covered under the more general formulation of the section ‘groups with a special need for protection’. The lack of explicit protection against hate crime is particularly highlighted by ILGA Europe in their recently published LGBTI Europe Map,38 where Norway scores generally high, but only poorer when it comes to hate speech and hate crime. ILGA recommends including explicit mention of sexual orientation, gender identity and sex characteristics in laws designed to tackle hate crime.

Policies

The action plan against discrimination based on sexual orientation, gender identity and gender expression (2017–2020) suggests the need for more competence in a number of public positions such as teachers, health personnel and social workers. The action plan also mentions the vulnerability of LGBTI children in asylum-seeking families to exposure to violence during the flight and afterwards, and highlight a similar risk of children in other minority families. However, it does not seem like the Government is aware of the more general vulnerability of non-normative children when it comes to domestic violence. LGBTI issues are not discussed in the Directorate for Education’s Guide to teachers and school leaders concerning bullying.39

13.4 Health

13.4.1 The right to health

Article 24 of the CRC recognizes the right of children to the highest obtainable standard of health:

States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

The obligation must be read in conjunction with Article 2 on non-discrimination, prohibiting states from offering children a poorer health service than other children because of their sexual orientation, gender identity/expression or sex characteristics. In General Comment No. 15,40 concerning the right to health, the Children’s Committee states that in order to fully realize the right to health for all children, State parties have an obligation to ensure that children’s health is not undermined as a result of discrimination, which contributes to vulnerability. The Committee explicitly mentions discrimination based on sexual orientation and gender identity. This understanding is also in line with Yogyakarta Principle 17, which in relation to transgender rights in para G, provides that states shall facilitate access to competent, non-discriminatory treatment, care and support for those seeking body modifications related to gender reassignment.

CRC Article 3 concerning the best interest of the child, Article 16 concerning the child’s right to private life, and Article 12 about the obligation to respect the view of the child, must all be taken in to consideration in all decisions concerning the health of the child. For health questions concerning gender identity and intersex children, the right to health must also be read in conjunction with Article 8 about the right of the child to develop its identity.41

When discussing what obligations the state has under Article 24, it is important to take into consideration that Article 4 of the CRC permits states the opportunity to fulfil the obligation progressively, and that the resources of the state should be taken into consideration. It is reasonable to expect, however, that Norway, who is among the countries with the highest Gross Domestic Product (GDP) per capita in the world,42 would be in a position to attain high standards. In any case, the main focus in this context is whether existing health services are provided without discrimination.

13.4.2 Health and gender identity

The need for health services

Being transgender means having a gender identity that is not the same as you were assigned at birth. While some children experience that they are nor girl nor boy, others have a strong identity as one of the two. In the TV documentary series Født i feil kropp (‘Born in the Wrong Body’), which aired on TV 2 in 2014, a 10-year-old named Mats describes his experience like this (my translation):

I am 10 years old and I’m transgender. That means that I was born with a girl’s body and everyone thought I was a girl, but in my heart and in my brain, I’m a boy.

Children who experience that the sex they were assigned at birth does not reflect their gender identity can experience distress and psychological pain because of their situation. The medical term for such psychological pain in distress is gender dysphoria (van der Ros, 2014). In van der Ros’ research Alskens Folk (2013), one informant describes strong psychological pain from early age, leading to a suicide attempt at age six (my translation):

I realized it was not going in the right direction; I will not get the life I need. So in the summer before I started school I thought I could not handle starting school with my girl name and my girl identity. So I tried to commit suicide. I was admitted to child psychiatry.

The story is an extreme example but is still useful to illustrate the severe psychological pain children can experience due to gender dysphoria. However, it is crucial to underline that being transgender is not a mental illness. Nonetheless, children can still require mental health care, as well as medical treatment to make their bodies accord with their gender identity. Such treatment is to be considered ‘necessary health service’ cf. the Health and Care Services Act § 3-1,43 which means this is health care that the state is obliged to provide without any form of discrimination. Such health care may include guidance, hormonal treatment delaying puberty, other hormonal treatment that will alter the body to be more feminine or masculine, and surgery.44 Genital surgery is not conducted on transgender children.45

The network model

For the youngest children exploring their gender identity, medical treatment is not necessarily needed. The child and the child’s social network, including both children and adults, need information, support and guidance to provide a safe environment free from social stigmatization. Such a ‘network model’, including specialists, local health personnel and the social network of the child have shown promising results internationally.46 In the TV documentary series ‘Born in the Wrong Body, 13-year-old Emma describes a good childhood, as she has always been allowed to wear what she wants and have long hair. Her mother describes that Emma has always been open and is now a confident girl.47 She adds (my translation):

I feel this is a strong advantage in her situation. Especially when they are allowed to be themselves from early age, and find support at school, home and among friends. This will be important in the years to come. When they will go through puberty and treatment it’s good to be open, and to be yourself.

Access to health care

Emma’s mother also expressed that she hoped that her daughter would receive hormone treatment to postpone puberty, avoiding those extra challenges that puberty might mean for Emma. The only hospital offering treatment to transgender children in Norway is the Oslo University Hospital’s National Treatment Service for Transsexualism. It is singularly empowered to give the diagnosis “transsexualism”, which is necessary to access medical treatment related to gender identity.48

The diagnosis used by the National Treatment Service is based on the diagnosis manual of the World Health Organization (WHO), which includes a spectrum of different diagnoses related to gender dysphoria.49 However, in Norway, medical treatment to make the body more in line with the patients gender identity, is only offered to those who meet the criteria of T 64.0 “Transsexualism”.50 In the information video made by Queer Youth Norway, several youths describe how they were afraid of “saying something wrong” and even lying to give ‘the right answers’ when meeting with doctors.51

The practice of the National Treatment Service has been criticized in a report from a Government appointed expert group,52 where it is recommended that treatment is offered to a wider range of persons with gender dysphoria.

The expert group further recommends that such treatment should be provided by the public health service at the regional level. This recommendation would mean a decentralization of the health services for transgender children, making it more available for children outside the Oslo region. The expert group also strongly criticized the general health care services, inter alia for a worrying lack of knowledge among health care professionals.

The report from the expert group is best known for suggesting a fundamental change from a medical model to a declaration model for legal gender, meaning transgender people no longer have to go through medical treatment and mandatory sterilization to be able to change their legal gender.53 This recommendation was followed by the Government, leading to a new Act on Legal Gender from 2016 which allows children under the age of 16 to change their legal gender with the consent of parents or legal guardians, and for children between 16 and 18 to decide their legal gender themselves.54

Self-determination

The age of legal consent for health services is 16 years, cf. the Patient’s Rights Act (Section 4(3)). Before this age, the child needs consent from the parents or legal guardians. While it should be safe to surmise that most parents listen to their children’s wishes, it is possible to imagine cases where the parents will not support or agree with the wishes and needs of the child. For example, if the child wants to have hormonal treatment to postpone puberty, this must be started earlier than 16 years. This situation raises several complicated legal questions concerning the right of the parent’s or legal guardian`s right to make choices on behalf of the child. A possible way to solve this issue could be to establish a specialized complaints procedure for such cases, for example in the Tribunal for Child Protection and Social Affairs at the county level (Sondrup 2015). Another question is whether the Child Protection Services could consider intervention in the family if the child is refused necessary health care, cf. the Child Welfare Act.55 According to Section 4-11, the Tribunal for Child Protection and Social Affairs can decide that a child with special need for treatment should be treated with the support of the Child Protection Services if the parents or legal guardians are not providing such treatment.

13.4.3 Intersex

Intersex characteristics

Intersex characteristics are bodily features that make the body neither typically male nor typically female. Such characteristics, which may be chromosomal, hormonal, and/or anatomical, lead to challenges in placing the child in one of the two categories boy or girl (Grasmo and Benestad, 2017). People with intersex characteristics often receive a medical diagnosis such as Turner or Swyer Syndrome.56 For some children, uncertainty of biological sex is caused by visibly ambiguous genitals, while for others the intersex characteristics may be unknown until chromosomes or hormones are tested. For this reason, intersex characteristics are not always noticeable before puberty.

However, for those where intersex characteristics are observable at birth, assessments are made by doctors of the child’s chromosomes, genitals and other bodily functions. Based on these factors, doctors give a recommendation concerning as to in which gender the child should be raised.57 In most cases, the child then undergoes surgery, and in many cases the child is also given hormone treatment. The surgery is irreversible, and can lead to serious medical complications and lack of sexual function and damaged sensitivity (Kohler et al., 2012. See also Sandberg, 2015 for further references). Moreover, the child might also have a different gender identity than the one decided by the doctors shortly after birth.

International criticism

The practice of conducting irreversible surgery on intersex children has been strongly criticized by several international human rights bodies, including the UN Special Rapporteur on Torture58 and the UN Committee against Torture.59 The main objections against early ‘genital normalising surgery’ is that the treatment is not necessary from a medical perspective, and that it is a breach of the child’s right to self-determination and personal integrity to conduct such surgery before the child is able to give its consent. The Committee on the Rights of the Child has raised this issue in several of their concluding observations to the member states,60 and in 2015, the Committee, together with a number of international human rights bodies gave the following statement:

[I]ntersex children and young people may be subjected to medically unnecessary, irreversible surgery and treatment without their free and informed consent. These interventions can result in severe, long-term physical and psychological suffering, affecting children’s rights to physical integrity, to health, privacy and autonomy and may constitute torture or ill-treatment. States should prohibit such interventions.

The practice also contravenes the Yogyakarta Principle 18 para B:

States shall … take all necessary legislative, administrative and other measures to ensure that no child’s body is irreversibly altered by medical procedures in an attempt to impose a gender identity without the full, free and informed consent of the child in accordance with the age and maturity of the child and guided by the principle that in all actions concerning children, the best interests of the child shall be a primary consideration.

National policies

In 2016 there emerged, for the first time, a focus on the topic of intersex children in the national administration of Norway. The Ministry of Health contacted the two departments conducting such surgeries at Oslo University Hospital (the Children’s Clinic) and Haukeland University Hospital in Bergen (Department for Child Medicine), requesting details concerning the surgery conducted on intersex children.61 In addition, the Directorate of Health gave a legal opinion on the situation for intersex children to the Ministry of Health.62 In the opinion, the Directorate finds that surgeries often lead to infertility and reduced sexual function, particularly if internal gonads are removed. This makes it necessary for the child to embark on long-term hormone treatment, which can cause medical problems at any point in its life. Furthermore, the Directorate is critical of the National Guidelines for Paediatricians (my translation):63

All healthcare offered in Norway should be professionally sound, i.e. of proven utility. According to the guidelines that the service has prepared (Bjeknes 2005), the main aim of the treatment is ‘to strengthen the gender role’. Furthermore, Bjerknes writes that ‘In this process there are a number of considerations that need to be taken, such as the child having a happy childhood and adolescence, an assured gender identity and the opportunity to have and enjoy sexual relationships.’ However, there is no research documenting that the treatment gives such effect. The lack of medical indication and scientific basis for health care may be problematic when viewed against the requirement of sound health care.

In October 2016, the Norwegian Directorate of Health and the Norwegian Directorate for Children, Youth and Family Affairs co-organized a symposium on the topic, inviting several relevant stakeholders, including doctors, researchers, authorities and civil society.64 A key issue in the discussions at the symposium and in the relevant correspondence between health services and the authorities, is the distinction between operations due to medical necessity, and operations based on psycho-social indicators. However, it shows from the documentation and the discussions that the definition of what is ‘necessary due to medical reasons’ remains unclear. More research on this issue is of high importance to obtain a clear picture of what surgeries are conducted on what grounds, and to clarify which surgeries could safely be postponed until the child is old enough to express its own views.

13.5 Education

13.5.1 The right to education

According to Articles 28 and 29 of the CRC, education should be aimed at developing respect for human rights and fundamental freedoms. The right to education must be read in conjunction with Article 17 on access to information, stating that the state parties shall ensure that the child has access to information and material. The provisions are broadly formulated making it somewhat difficult to crystallize the precise obligation of the state to provide accessible information to children concerning sexual orientation, gender identity/expression and sex development. However, the Yogyakarta Principle no. 16 para D, concerning the right to education provides useful guidance:

States shall … ensure that education methods, curricula and resources serve to enhance understanding of and respect for, inter alia, diverse sexual orientations and gender identities, including the particular needs of students, their parents and family members related to these grounds;

15.5.2 National education legislation

According to the Section 1(1) of the Education Act, the purpose of the education is as follows: ‘Education and training shall be based on fundamental values in Christian and humanist heritage and traditions, such as respect for human dignity and nature, on intellectual freedom, charity, forgiveness, equality and solidarity, values that also appear in different religions and beliefs and are rooted in human rights.’ The Independent Schools Act has a similar regulation in Section 1(1).65 The 2018 Equality and Anti-Discrimination Act, also obliges schools to ensure that teaching and learning material builds upon the purpose of the law, which is ‘to promote equality and prevent discrimination on grounds of gender, (…) sexual orientation, gender identity, gender expression.The required content of the education in primary and secondary school is further specified in administrative regulations and curricula.

13.5.3 Curricula and learning material

According to the national curricula, Norwegian children shall be able to have a conversation about differences in gender identity and variations in sexual orientation in natural science class after seventh grade. 66 After tenth grade, they should be able to formulate and discuss issues related to sexuality, sexual orientation and gender identity.67 In social studies, children shall be able to have a conversation about love and respect, variation in sexual orientation and relationships and family and discuss consequences of lack of respect for differences. In addition, children shall have a conversation concerning ethics in relation to different ways of being a family, the relationship between genders and different gender identities.68

However, in Norwegian classrooms, the teaching about diversity in sexual orientation and gender identity, if there is given any, is often deficient (Røthing 2013). Due to vague or general formulations in the national education plans, the school or teacher is often free to consider if this kind of education should be provided or not. Røthing (2013) finds that in textbooks, gay people are often described as ‘others’ that need to be accepted by the community. She also finds that in sex education there are no books or teaching materials describing sex between two people of the same gender.

13.5.4 Knowledge among teachers

To be able to provide students with a solid education in issues relating to diversity in gender, sexuality and sex development, and to meet children that might have more questions about this topic in a safe and respectful way, the teachers need to have the knowledge to handle these situations. This is also particularly highlighted in the 2016 Government Action Plan on LGBT.

In 2016, the Ministry of Education published new regulations concerning the master’s studies for teachers.69 The regulation mentions rights of children in relation to bullying but does not mention diversity or anti-discrimination. Each institution of education providing the master programme for teachers have to develop a programme/plan outlining the more detailed content of the education. The education to become a teacher is offered by a number of different universities and college universities in Norway and divided in two different master’s degrees; one for grades 1 to 7 and one for grades 5 to 10.

The curricula which include specific learning goals concerning sexual orientation and gender identity/expression as mentioned above, relates to grade 5 through 10, and it is therefore relevant to look into the programme plans of this degree. For Oslo and Akershus University College, the master’s programme plan includes a chapter concerning the ‘Perspective of gender, equality and diversity’, where the following reflection is made (my translation):70

A pervasive norm-critical perspective in the education can help students understand how bullying, harassment and violations often relates to several identity categories instead at the same time, such as gender, sexual orientation, disability, ethnicity and religion. Students should be able to recognize and challenge the norms and discourses that reproduce and reinforce a ‘we’ and ‘they’ sentiment. This opens up for establishing standards in the classroom that promote community, diversity and democratic citizenship.

Oslo and Akershus University College have also developed a publication on how questions relating to sexual orientation can be highlighted in the different programmes provided by the University College.71 However, it seems that this college is the only education institution stressing the topic of sexual orientation, gender identity and expression in their programme.72 This is not to say that the topic is not discussed in the relevant courses, but it does show that diversity does not seem to be an overarching focus in the education of teachers.

13.6 Conclusions

From a law and policy perspective, the main impression from the sources studied, is that children are well protected in the legislation and that national authorities do have a particular focus on the rights of LGBTI children in their policy work. Furthermore, the Norwegian Government promotes diversity in gender and sexuality and seeks to combat discrimination and harassment in particular in the education setting. At the same time, this chapter shows that children who challenge traditional conceptions of gender and sexuality are subjected to discrimination, harassment and bullying. Challenging the society’s heteronormative understanding of sex, gender and sexuality also affects current access to necessary health services, and some children might be subjected to unnecessary surgeries with that aim of ‘strengthen the gender role’.

Many rights are still not realized in practice, and there is a lack of remedies for violation of rights. In particular, children experiencing discrimination or harassment are dependent on the consent of their parents or legal guardians in order to file a complaint, and the existing procedures cannot be considered child-friendly. Given the low number of complaints concerning discrimination of children, it would have been useful to see more research on the level of discrimination against children, in particular more comprehensive studies and surveys on experienced/perceived discrimination and bullying/violence.

When it comes to violence, including harassment and bullying, awareness of sexual orientation and gender identity/expression as a vulnerability factor is lacking in the Government’s policies concerning bullying and violence against children. There is also reason to suggest more research exploring the relationship between heightened exposure to violence and the child’s sexual orientation and gender expression/identity.

For trans children, a serious challenge is access to necessary health services in relation to gender dysphoria. While Norway generally has a well-functioning and patient-centric health care system (OECD, 2014), the health care service for trans children is not adequate, and knowledge among health care professionals needs to be strengthened in order to interact with children in a safe and respectful manner. Furthermore, Norway is seemingly still following a practice of ‘normalizing’ surgeries on intersex children, which has been strongly criticized by a number of international human rights bodies. While there are positive developments concerning the focus and awareness on the issue, there is still a need for the national authorities to take an explicit stand on the abolition of medically unnecessary and possibly harmful surgeries.

Finally, modernized learning material that “promote equality and prevent discrimination” in line with the new Ant-Discrimination Act, as well as a greater awareness and competence in educational institutions and teachers, and measurements of this competence, could improve the realization of the rights of LGBTI children.

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1The testimony of a 25-year-old informant in the study Seksuell orientering og levekår [Sexual Orientation and Living Conditions] by Andersen, Normann og Kirsti Malterud (ed.), 2013. My translation.
2United Nations Convention on the Rights of the Child, New York, 20 November 1989.
3ILGA Europe Glossary.
4Oslo University Hospital, 2016.
5In medical terms ‘Disorders of Sex Development (DSD)’.
6United Nations Convention on the Rights of the Child, New York, 20 November 1989.
7Rt. 2009, page 1261.
8The European Convention on Human Rights and Fundamental Freedoms, Rome, 4 November, 1950.
9The Yogyakarta Principles – The Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, Yogyakarta, March 2007.
10UN Committee on the Rights of the Child (2013).
11See for example European Court of Human Rights (ECtHR), X and others v. Austria, application no. 19010/07.
12The Committee on the Rights of the Child and others (2015).
13UN Human Rights Committee, General Comment No. 18: Non-Discrimination (1989).
14See, e.g. ECtHR, D.H. and others v Czech Republic, application no. 57325/00.
15This topic is discussed in section 4 of this chapter.
16Committee on the Rights of the Child and others (2015).
17Committee on the Rights of the Child (2003).
18Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, New York, 19 December 2011. The Protocol is not ratified by Norway.
19Rt. 2012, page 2039.
20Act no. 115, 19 December 2017, on Prohibition of Discrimination.
21Prop. 81 L (2016–2017) The Equality and Anti-Discrimination Act.
22Act of 19 December 2017 no. 114, on the Equality and Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal.
23Act of 10 June 2005 no. 40, on the Equality and Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal (repealed).
24Information about the cases received by the Ombud is not publicly available. The information in the following section has been obtained by concrete requests to the Ombud. The first reply with an overview of cases was received 23 November 2015, and updated version was received 23 January 2017.
25Case 14/1677 Child refused treatment (no violation) and case 14/2375 Child refused psychological health care (rejected).
26Case 14/1343 Information about homosexuality on website (no violation).
27The Equality and Anti-Discrimination Tribunal, Case No. 22/2012.
28The Act of 17 June 2005 No. 62 relating to Working Environment, Working Hours and Employment Protection, etc.
29The Act of 20 May 2005 No. 28, The General Civil Penal Code.
30Save the Children Norway, Submission to Public Consultation – Improving the Enforcement in the area of Discrimination, 30 November 2016.
31The Ministry of Children and Equality, 2016.
32Blikk.no, 2016.
33Committee on the Rights of the Child (2011).
34Ibid, para 21.
35This is the definition used in the Norwegian anti-discrimination legislation, including the Norwegian Sexual Orientation Anti-Discrimination Act, Section 8.
36The European Union Agency for Fundamental Rights, 2014.
37Act of 17 July 1998 no. 61 on Primary and Secondary Education.
38ILGA Europe, 2017.
39The Directorate for Education, 2011.
40Committee on the Rights of the Child (2013).
41See more about LGBTI children and the right to identity in Sandberg (2015).
42International Monetary Fund, World Economic Outlook Database, April 2018.
43Directorate for Health (2015).
44Ibid.
45Ibid.
46Ibid.
47TV 2, 2014.
48The Directorate of Health (2015).
49World Health Organisation (2016).
50The Directorate of Health (2015).
51Queer Youth Norway (2014).
52Norwegian Directorate of Health (2015).
53For an in-depth analysis of issues related to children and legal gender, see Sørlie (2015).
54Act of 17 June 2016 No. 46 on Changing Legal Gender.
55Act of 17 July 1992 No. 100 relating to Child Welfare Services.
56Bjerknes et al. (2016).
57Dagens medisin (2008).
58Human Rights Council (2013).
59The Committee against Torture (2011).
60Committee on the Rights of the Child in their concluding remarks to Switzerland, 2015, Ireland, 2016b and France, 2016a.
61Helse Vest (2016).
62The Norwegian Ministry of Health (2016).
63Bjerknes et al. (2016).
64Bufdir (2016).
65Act of 4 July 1984 regarding Independent Schools.
66The Directorate of Education – National Curricula.
67Ibid.
68Ibid.
69The Ministry of Education (2016a).
70Oslo and Akershus University College (2016).
71Smestad (2010).
72Based on information about the programmes available at the webpages of the 8 university colleges, 11 March 2017.

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