The Missing Word
Translated from the German original, «Das Wort, das fehlt», with the help of AI and reviewed by me.
This summer FDP National Councillor Marcel Dobler told a news portal: “As far as I’m concerned, penis-bearing women have no business in the Paradiesli or in women’s saunas.” He didn’t mean any particular person. He meant trans women.
I’ve known sentences like that for longer. During one of my army refresher courses I was sitting in the common room, in the same uniform as the men around me. One of my cooks was talking about a woman he had met, and wondered out loud what he would do if she turned out to be trans. The others laughed. I was his superior, and I had to pull myself together not to cry. Nobody in the room had any idea he was talking about someone like me.
That was a joke among men, in a closed room. Dobler’s statement, by contrast, was made in public and aimed at a whole group. For groups named in the law, courts examine in such cases whether the provision has been breached. Trans people aren’t named there. The provision doesn’t apply to us at all. The law is missing a word.
The Civil Code now knows me as a woman. The Criminal Code doesn’t know me at all.
Anyone in Switzerland who writes publicly that gay men are a danger to children risks prosecution. Since July 2020. Anyone who writes the same sentence about trans women isn’t covered by this provision.
That isn’t just my assessment. The Federal Council wrote it down itself last November, in a report on the situation of non-binary people. Sex, gender identity and sex characteristics, it says, are “not yet covered” by the provision.
The provision is Article 261bis of the Criminal Code. People know it as the anti-racism law. It prohibits publicly inciting hatred against a group, or demeaning it, because of its race, ethnicity or religion. In 2020 sexual orientation was added. Even that was late. Norway has protected gay and lesbian people from hate speech since 1981, France since 2004.
We should have been added too.
In 2018 the National Council wanted to include both, sexual orientation and gender identity. A Green Liberal spokesman said it concerned around 40,000 people and had nothing to do with sexuality. The Federal Council was against it. Justice Minister Simonetta Sommaruga called the term unknown in Swiss law and relatively vague. Gender identity, she said, was an individual, deeply intimate feeling.
The Council of States struck the word out. Gender identity, it was said, could not be clearly defined. The National Council gave in. In February 2020, 63 percent of voters said yes. To a protection we had been taken out of beforehand.
It’s worth being precise here. Anyone who insults me personally is committing an offence today as well, that’s what the defamation provisions are for. What’s missing is protection as a group. “Trans women are men in disguise” doesn’t target any particular person. It targets every trans woman, and that is exactly why the provision doesn’t cover it.
A ruling from 2024 shows how seriously the courts take that line. The Federal Supreme Court upheld the conviction of the far-right essayist Alain Soral, who had demeaned a journalist because of her sexual orientation. In its reasoning it drew the line explicitly: he had targeted her sexual orientation, not her gender identity. By that logic, the same attack on a trans woman would not have been a case for the provision.
Which leaves the argument from back then. That the term is too vague.
Since 2022, an inner conviction decides which sex is in the Swiss register. Civil registry offices have applied it ever since, around 600 times a year. And the Federal Council now defines gender identity itself, in the same report from last November, as a person’s inner, individual and deeply felt sense of their own gender.
A term too vague to protect me from hate speech was precise enough to make me a woman in the eyes of the state.
Other countries protected trans people long ago. France has protected trans people since 2012, back then under the term “identité sexuelle”. That was eight years before Switzerland protected gay and lesbian people. In 2017 France replaced the term in its hate speech provisions with “identité de genre”, precisely to keep gender identity and sexual orientation clearly apart. It’s the same distinction the Federal Supreme Court drew in the Soral case.
Norway has allowed people to change their legal gender without a diagnosis since 2016, much like Switzerland since 2022. In 2021 its parliament made hate speech against trans people a criminal offence, introduced by a conservative-led government. Switzerland hasn’t taken that second step.
So why does Switzerland find it so hard when it comes to us?
One reason is the argument from 2018, that the term is vague. It survives even though it no longer holds, because it sounds reasonable. That’s how it works in the debate: nobody has to speak out against protecting trans people. It’s enough to express doubt about whether the characteristic can be clearly defined.
A second is the worry about too much criminal law. The SVP says there are already enough offences on the books. A criminal law professor warned in Blick that if everything is punishable, nothing is. The Council of States’ committee found that an extension was no solution and would burden the courts. These are serious objections. But they were raised in 2020 for gay and lesbian people too, and voters said yes anyway.
The third reason is more uncomfortable. The provision doesn’t only prohibit incitement, it also prohibits refusing someone a service because of a protected characteristic. As soon as “sex” was on the table, the media asked what that would mean for women’s swimming baths and women-only club nights. So every discussion about protecting us ends up where it has been since the Marzili: with the question of who is allowed into a women’s space. Anyone who wants to protect trans women gets a debate about changing rooms. That makes the topic too hot for many.
And then there’s something I’ve written about before. For gay and lesbian people, the 2020 vote didn’t come out of nowhere. By then almost everyone knew someone. For us it’s different, at least that’s how I experience it. We are few, and those who have transitioned often disappear from view. If you don’t know anyone, the topic stays abstract. And an abstract group is easy to postpone.
Then there’s what happens abroad. In England, trans issues have become a culture war in recent years, and the images and arguments from there turn up here again, right down to the swimming pool in the SVP’s AI-generated picture.
In the end, for many in parliament we are a risk with no reward. Protecting us wins hardly any votes, but it can lose some. That the initiatives got through at all is thanks to women from six parties who talked about misogyny.
Hardly anyone talked about us.
There is a new attempt, just by a detour. In 2021, six women in the National Council from six parties submitted identical parliamentary initiatives. A single word is to go into the law: sex. It was prompted by a misogynist banner held up by Schaffhausen fans at a match against FC Winterthur, which went unpunished. The National Council agreed in December 2023, with only the Swiss People’s Party (SVP) against. A year later the Council of States narrowly followed, by 21 votes to 18.
That’s good news. The Federal Council writes in its report that “sex” would be read as it is in the Federal Constitution, and would therefore also cover trans, non-binary and intersex people.
Still, I don’t fully trust it. The initiative text only says “Geschlecht”, and its justification was misogyny. The French version says “sexe”, not “identité de genre”. That isn’t meaningless, since all three official languages are equally binding. The question is whether every version makes the same protection recognisable. And opponents attack exactly this word for having become blurry. If neither the law nor at least the accompanying report says clearly who is meant, the courts will decide in the end. In the Soral case, the Federal Supreme Court showed how closely it reads the wording.
On 19 and 20 November the item is on the agenda of the National Council’s Legal Affairs Committee. There is no draft yet. What I’d like to see is wording that makes the protection unmistakable. Sex, gender identity and sex characteristics. The Federal Council’s interpretation is a good sign, but it doesn’t bind the courts the way the text of the law does.
The climate isn’t getting better. For 2024, the LGBTIQ Helpline received 309 reports of queerphobic violence and discrimination, half of them from trans people. Those are only the reports. The real number is likely much higher, not least because only a few cantons record queerphobic hate crimes at all. On 24 September the Council of States rejected a motion that would have written gender identity into the Gender Equality Act. And the SVP parliamentary group wants to reverse the simplified change of legal gender, after the incident at the Marzili baths I wrote about here.
So the debate has two sides. On one, it’s supposed to become harder for us to be recognised. On the other, it remains open whether people may publicly incite hatred against us.
On the bus, in the shop, at the office, people mostly don’t notice that I’m trans. When people find out I’m trans, they’re usually surprised. I could leave it at that. Still, I say publicly that I’m trans, because this is exactly where I want to change things politically. Doing that is a choice. Not being protected from public hate speech for it isn’t.
My name is here. I’m politically active, I write about myself, and I know that trans women can be publicly demeaned without criminal law stepping in. I don’t want to feel like a target just because it’s legal.
A law against hate speech doesn’t only protect the person a statement targets. It also sets limits on how a group may be publicly demeaned. For gay and lesbian people that limit has existed since 2020. For us it doesn’t.
The state believed me when I told it who I am. It just hasn’t written that into the Criminal Code yet.