On April 17, 2024, the Swedish Parliament voted to approve a new transgender law that revokes the Transgender Act of 1972 (Lag om fastställande av könstillhörighet i vissa fall (SFS 1972:119)) and makes the process of changing one’s legal gender and one’s genitalia easier.
Background to the New Law
In a committee initiative introduced on April 4, 2024, the Parliament’s Committee on Health and Welfare proposed adopting a new Act on Determining Gender in Certain Cases and repealing its predecessor, the Act of 1972 on Determining Legal Gender in Certain Cases (also known as the 1972 Transgender Act). The initiative also proposed adopting a stand-alone law covering medical procedures performed to make a person’s genitalia conform with their gender identity. (Committee Initiative bet. 2023/24:SoU22.) Both acts are scheduled to enter into force on July 1, 2025. The last time the 1972 Act was amended was in 2013, when the requirement that a person be sterilized before changing their gender was removed.
New Legal Gender Legislation
As adopted, the new Act on Determining Gender in Certain Cases allows persons ages 16 years and above to change their legal gender without a prior diagnosis of gender dysphoria. Specifically, the provision states:
A person who has turned 16 years of age may upon request have it established that the person has a different gender than that which appears in the National Registry when
- the person is registered as a resident in Sweden, is a Swedish citizen and has been a resident of Sweden, or is a nonresident Swedish citizen and has a coordination number,
- the person is not a registered partner,
- the gender that appears in the National Registry does not conform with the person’s experienced gender identity, and
- it can be assumed that the person will live in this [new] gender identity for the foreseeable future. (2 § New Act on Determining Gender in Certain Cases, as proposed.)
Under the new law, requests by minors must be made by the minor’s legal guardian.
Under the current law, a person wishing to change their legal gender must be diagnosed with gender dysphoria and outwardly live as a person of the desired gender. (1 § Lag om fastställande av könstillhörighet i vissa fall (SFS 1972:119).)
In practice, changing one’s legal gender requires assigning a new personal identification number (similar to a social security number) because this ten-digit number includes a digit that designates the bearer as male or female. (18 § Folkbokföringslag [National Registry Act] (SFS 1991:481).) Neither the current nor the new law provides an option for persons to designate their legal gender as “other,” but only as either female (kvinna) or male (man) in the National Registry (folkbokföringen). The National Registry is the basis for issuing all Swedish identification documents, including IDs, passports, and driver’s licenses, as well as documenting a person in public registries such as health care databases and school records. Reportedly, nonbinary Swedes have argued that creating a third gender in the National Registry would have been better than the current change.
Regulation of Medical Procedures Performed on Genitalia
In addition to amending the way legal gender is changed, the law specifies when medical procedures to change a person’s genitalia may be made. Currently, such interventions are regulated in the 1972 Transgender Act. Under the committee initiative, as approved by Parliament, the procedures will be regulated in a stand-alone act called the Act on Certain Surgical Procedures on the Genitalia. Currently, such interventions are limited to making the genitalia look like the genitalia of the other sex and require prior approval from the National Board of Health and Welfare. (4 § Lag om fastställande av könstillhörghet i vissa fall (SFS 1972:119).) This approval may be given only when the person: “1. for a long time has experienced that he or she belongs to the other gender, 2. for a time has acted in conformity with this gender identity, 3. must be assumed will [continue to] live in this gender identity in the future, and 4. have turned eighteen years of age.” (1 §.)
Under the new rules, a person no longer needs to have been outwardly living as a person of the desired gender. Specifically, the committee proposal provides that:
A surgical procedure on a person’s genitalia with the purpose of making the body conform to the gender identity may be performed on a person 18 years of age if that person
- is a resident registered in the National Registry,
- for a long time has felt that [their] body does not conform with the gender identity, and,
- must be presumed will be living in this gender identity for the foreseeable future.
The gonads of a person under 23 years old may be removed only if there are special reasons for doing so. (2 § Lag om vissa kirurgiska ingrepp i könsorganen, as proposed in bet. 2023/24:SoU22.)
A person need not be a Swedish citizen to be eligible for the medical procedure, but a Swede living abroad would not be eligible. Moreover, unlike currently, the law does not prescribe that the procedures be limited to making a person’s genitalia look like those of the other sex but could possibly also include medical treatment that would simply remove certain features of the current genitalia if done to make the genitalia more conforming to the person’s gender identity.
Furthermore, the procedures no longer require prior approval from the National Board of Health and Welfare. Instead, each case will be determined by the responsible medical team. As a result, the decision to perform or not to perform the procedure will not be made by the National Board of Health and Welfare or by the Swedish courts. Thus, a person who is denied medical intervention related to their gender dysphoria cannot appeal the decision. However, they may seek the treatment again at a later time or possibly from a different provider who may make a different determination. The medical team will have to continue to determine that the treatment is necessary and compatible with the Hippocratic oath.
The current initiative was not sent for public review, but a 2018 government report on Certain Medical Procedures on Genitalia (Vissa kirurgiska ingrepp i könsorganen (Ds 2018:11) ) was, and the comments the report received during its review process were included in the committee initiative. At that time, medical experts questioned the removal of the requirement that a person must appear as the other gender because they found this requirement predictive as to whether the person would continue to live in the new gender identity and feared that patients would come to regret their medical procedures. The Committee on Health and Welfare instead argued in its committee initiative that
. . . it can be assumed that an individual’s desire to undergo gender-affirming care is not aroused without being preceded by both long suffering and difficult considerations. It is difficult to set criteria for how a gender identity should be manifested because it is highly outwardly personal. The committee therefore believes that a requirement that the applicant behave in accordance with the gender identity is not appropriate because it risks imposing a certain behavior on the individual on the basis of others’ perceptions of how people of a certain gender should behave.
Legislative Procedure
The legislative proposal was not brought by the sitting government as a bill (proposition) or by a motion by one of the members of Parliament but by the Committee on Health and Welfare (Socialutskottet) under the “committee initiative right” (utskottsinitiativ), as regulated in the Riksdag Act. (9 ch. 16 § Riksdagsordningen (RO) [Riksdag Act] (SFS 2014:801)).) Under this provision, parliamentary committees may propose legislation that relates to their area of expertise.
Because the proposal was not supported by all the government coalition parties and also faced some internal opposition within the parties that supported the initiative, the vote was preceded by a vote on whether the initiative should be remanded to the responsible government agency. By law, an initiative must be sent to the responsible government agency if one-third of all members of Parliament voting on the remanding request it. (11 ch. 5 § RO.) Opponents of the bill did not gather sufficient support to remand the initiative.
Before the vote on the committee initiative, a number of members of Parliament in the Moderate Party voiced criticism of the proposal, as did members of the Social Democrats’ women group, but in the end only two members of Parliament present voted against their respective party lines. Ultimately, the committee initiative passed with 234 votes in favor and 94 votes against.
Because the vote was not superseded by a government bill, the Parliament, through the committee initiative, directed the government to create regulations supporting the legislation, create a national inventory of knowledge on the issue to support the approval of applications for gender change, adopt measures to prevent criminal abuse of the law (particularly, multiple changes of a person’s social security number), and review the effects of the law in three years’ time.
Both acts are scheduled to enter into force on July 1, 2025.
Elin Hofverberg, Law Library of Congress
April 22, 2024
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