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Norway: Ethics Body Votes in Favor of Allowing Transgender Males to Keep Ovaries

(Nov. 16, 2015) Under a new draft law on changing one’s legal status formulated by Norway’s Ministry of Health and Social Affairs, men who are born as women and women who are born as men who wish to change their legal gender would no longer have to undergo irreversible sterilization and castration to do so, and they would also be eligible for assisted reproduction. (Ingvild Baltzersen Sund, Martin Roalsø, & Kjersti Strømmen, – Bør få skifte kjønn uten å kastrere seg [Should Get Sex Change Without Castrating Themselves], NRK (Nov. 2, 2015); Ministry of Health and Social Affairs, Høringsnotat: Forslag til lov om endring av juridisk kjønn [Consultation Paper: Proposed Law on Changing Legal Status] (2015), REGJERINGEN.NO.)

The plan to discontinue the forced sterilization rule as a prerequisite for establishing a legal change of gender was announced in April of this year by the Ministry of Health and Social Affairs. (Norway Ethics Body Backs IVF for Legal Males, LOCAL (Nov. 3, 2015).) According to one news report, “[i]n many European countries like Norway, the requirement of sterilization, known in the Nordic nation as a ‘real sex conversion’, is based on an administrative practice from the 1970s, and has no legal basis.”  (Kieran Guilbert, Sterilization Threat Darkens Europe’s Transgender Quest for Identity, REUTERS (Apr. 6, 2015).)

On November 3, 2015, the Norwegian Biotechnology Advisory Board, a 13-member body that gives advice on scientific ethics, voted in favor of the government proposal, by a 9 to 4 margin. If the draft law is adopted, transgender males could keep their ovaries and have children through in vitro fertilization (IVF) and other types of treatment. (Norway Ethics Body Backs IVF for Legal Males, supra.)  The Chairperson of the Board, Kristin Halvorsen, stated that the majority of the Board’s members “saw ‘no compelling reason’ why being legally male should prevent anyone from receiving artificial insemination and IVF treatment … through Norway’s national health service.” (Id.)

While the Board voted unanimously in support of the government’s proposal to remove the forced sterilization requirement, a minority of the members voted against the right of artificial insemination for transgendered individuals on the grounds, among others, that being pregnant is associated with motherhood, and a person cannot both insist on being a woman and get pregnant and be a man at the same time. (Id.) A man who has changed his legal status to a female would be able, if the draft law is adopted, to use his own sperm for assisted reproduction. (Høringssvar: Forslag til lov om endring av juridisk kjønn [Consultation Response: Proposed Law on Amending Legal Status] (Nov. 2, 2015), BIOTEKNOLOGIRADET.NO.)

In the draft law on changing legal status, the Norwegian government also proposes that children between seven and sixteen years of age, after consultation with their parents, be permitted to change their legal gender without having to undergo a psychiatric or medical evaluation. This would enable them to reverse the gender change decision at will.  (Norway to Let 7-Yr-Olds Change Gender, LOCAL (June 25, 2015).) According to Minister of Health and Social Affairs, Bent Høie, “[t]he proposal is historic in that it will no longer be the health service but the individual who decides if he or she has changed sex.” (Id.)  If the proposed law is adopted, several other laws will have to be amended, including the Biotechnology Act, the Names Act, and the Children’s Act.  (Høringssvar: Forslag til lov om endring av juridisk kjønn, supra, § 10.)