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Sweden: Law Providing Compensation to Sterilized or Infertile Gender-Change Surgery Recipients Takes Effect

(May 10, 2018) On May 1, 2018, the Swedish Act on State Compensation in Certain Cases to Persons Who Have Had Their Changed Gender Verified took effect. (Lag om statlig ersättning till personer som har fått ändrad könstillhörighet fastställd i vissa fall (Svensk författningssamling [SFS] 2018:162), Sverges Riksdag [Swedish Parliament] website.) This new temporary legislation provides that within two years from its effective date, persons who underwent gender-change surgery and were either simultaneously sterilized or otherwise proved they were infertile between July 1, 1972, and June 30, 2013, may apply for state compensation. (Id.)

Under the law such persons can receive a one-time-payment of 225,000 Swedish krona (SEK) (approximately US$26,000). (2 § Lag om statlig ersättning till personer som har fått ändrad könstillhörighet fastställd i vissa fall.) There is no requirement that the person has been sterilized—persons who proved that they were unable to reproduce (and therefore did not need to be sterilized) in order to be granted the gender-change operation are entitled to the compensation. (Id. 1 §.) The application for compensation will be reviewed by the Kammarkollegiet (Legal, Financial and Administrative Services Agency). (Id. 6 §.)

By adopting the new law, the Swedish Parliament aims to compensate for the pain and suffering of those who, to fulfill the de facto government requirement from 1972–2013 that persons who had their gender altered may not reproduce, underwent forced sterilization or were forced to prove that they were unable to reproduce in order to procure gender-change operations. (Socialutskottets betänkande 2017/18:SoU19 Statlig ersättning till personer som har fått ändrad könstillhörighet fastställd i vissa fall [Committee on Social Issues Report – State Compensation in Certain Cases to Persons Who Have Had Their Changed Gender Confirmed], Swedish Parliament website.) However, the Swedish government has chosen not to call the payment “damages” but refers to it as an ex gratia payment—a payment made despite no legal duty to do so. (2017/18:SoU19 at 6.)

Because the payment is considered personal compensation for suffering, it will not be counted as income when determining whether someone qualifies for other state or local benefits, and it cannot be seized for the payment of debts. (10 § Lag om statlig ersättning till personer som har fått ändrad könstillhörighet fastställd i vissa fall.)

Background of the Law

Until July 1, 2013, accepting sterilization or proving reproductive inability was a state-mandated requirement to qualify for a gender change. (1 § 2 st Lagen om fastställande av könstillhörighet i vissa fall (SFS 1972:119), Government Offices website; see also Lagrådsremiss, Upphävande av kravet på sterilisering för ändrad könstillhörighet (Feb 14, 2013).) That legal requirement, while it was under review in Parliament, was deemed unconstitutional by the Swedish Administrative Appeals Court in Stockholm in 2012 for violating 2 kap. 6 § of the Swedish Constitution and articles 8 and 14 of the European Convention on Human Rights. (Kammarrätten i Stockholm [Administrative Appeals Court], Case No. 1968-12 (Dec. 19, 2012); see also Press Release, Kammarrätten i Stockholm (Dec. 19, 2012).)

History of Forced Sterilization and Temporary Compensatory Legislation

Sweden has previously used temporary legislation to compensate for sterilization of persons with mental disabilities. (Lagen om ersättning till steriliserade i vissa fall [Act on Compensation to Sterilized Persons in Certain Cases] (SFS 199:332).)

In the 1930s Sweden began sterilizing persons with mental disabilities. (Lagen om sterilisering av vissa sinnessjuka, sinnesslöa eller andra som lida av rubbad själsverksamhet [Act on Sterilization of the Insane, Mentally Slow, or Others Suffering from Distorted Mental Activity] (SFS 1934:171).) The practice of routinely sterilizing persons with mental disabilities continued into the 1970s. (See Statens Offentliga Utredningar [SOU] 1999:2 Steriliseringsfrågor i Sverige 1935–1975 – Ekonomisk ersättning [Government Report 1999:2 Sterilization Issues in Sweden 1935–1975 – Financial Compensation] at 67 (SOU 1999:2), Government Offices website.)

The group of persons who could apply to have another person sterilized included guardians, physicians, managers, the local Welfare Benefits Board, and the Child Well Care Board. Although the law did not permit the use of physical violence in sterilizations, the decision as to whether a person should be sterilized was made over the objection of the affected person, with the assumption that the person would change his or her mind and agree to the sterilization once the decision was issued. (SOU 1999:2 at 67.)

The 1999 Act on Compensation to Sterilized Persons in Certain Cases offered compensation to persons who had been sterilized between 1936 and 1976 and who applied for compensation prior to December 31, 2002. (3 & 6 §§ Lagen om ersättning till steriliserade i vissa fall.) It provided for compensation of a one-time payment of SEK175,000 (which roughly equals the compensation now given to persons sterilized because of gender change) (see Rodney Edvinsson, Historical Currency Converter (last updated Jan. 10, 2016)).

Criticism by Swedish Law Council

The Swedish Council on Legislation (Lagrådet), which reviews proposed legislation before it is presented to Parliament, has criticized the use of temporary legislation, including Act SFS 2018:162, to address compensatory issues for wrongdoing by the state. (Lagrådet, Utdrag ur protokoll vid sammanträde 2017-11-2 (Nov. 21, 2017).) The Council commented that a permanent compensation plan would be more suitable to cover all instances of state wrongdoing. (Id. at 4.)