Transgender [ECHR]

Development

The court has modified the approach to transsexuals in line with the changing consensus in society. In Goodwin v United Kingdom, a transsexual male to female by surgery lived as a woman but was deemed a man for UK registration purposes. However, states enjoyed a wide margin of appreciation, gender reassignment surgery was recognised by the National Health System. The failure to recognise gender had significant consequences for the applicant.

In the 21st century, the right of transsexuals to personal development and physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast light on the issues involved. In short, the unsatisfactory situation that produced transsexuals living in an intermediate zone, not quite one gender or the other, was no longer sustainable. There was, accordingly a breach of Article 8.

Recognition

Hämäläinen v. Finland The applicant was born a male and married a woman in 1996. The couple had a child in 2002. In September 2009 the applicant underwent male-to-female gender reassignment surgery. Although she changed her first names in June 2006, she could not have her identity number changed to indicate her female gender in her official documents unless her wife consented to the marriage being turned into a civil partnership, which she refused to do, or unless the couple divorced.

The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It found that it was not disproportionate to
require the conversion of a marriage into a registered partnership as a precondition to legal recognition of an acquired gender as that was a genuine option which provided legal protection for same-sex couples that was almost identical to that of marriage. The Court further considered that no separate issue arose under Article 12 (right to marry) of the Convention and found that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Articles 8 and 12 of the Convention.

A.D. and Others v. Georgia The applicants, transgender men (assigned female at birth), complained that they had been unable to obtain legal recognition of their gender because they had not undergone sex reassignment surgery. The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in respect of the applicants. The imprecision of the current domestic legislation undermined the availability of legal gender recognition in practice, and the lack of a clear legal framework left the domestic authorities with excessive discretionary powers, which could lead to arbitrary decisions in the examination of applications.

In Parry v UK 2006 gender reassignment recognition legislation had been passed. It required annulment of marriage for married persons. This was held not to be disproportionate.

Birth Cert

Garçon and Nicot v. France concerned three transgender persons of French nationality who wished to change the entries concerning their sex and their forenames on their birth certificates, and who were not allowed to so do by the courts in the respondent State.The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention in respect of the second and third applicants, on account of the obligation to establish the irreversible nature of the change in their appearance. It further held that there had been no violation of Article 8 of the Convention, in respect of the second applicant, on account of the obligation to prove that he actually suffered from gender identity disorder and, in respect of the first applicant, on account of the obligation to undergo a medical examination.

The Court held, in particular, that making recognition of the sexual identity of transgender persons conditional on undergoing an operation or sterilising treatment to which they did not wish to submit amounted to making the full exercise of one’s right to respect for private life conditional on relinquishing full exercise of the right to respect for one’s physical integrity.

Y v. Poland concerned applications by a transgender man to have reference to his gender assigned at birth removed from his birth certificate, or to have a new birth certificate issued..

The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the Polish authorities had acted within their broad discretion (“margin of appreciation”), striking a balance between the relevant interests in the current case. It noted, in particular, that the applicant’s short-form birth certificate and identity documents indicated his reassigned gender only, and that the long-form birth certificate was not accessible to the public and was required only in rare circumstances.

Name

S.V. v. Italy case concerned the Italian authorities’ refusal to authorise a transgender person with a female appearance to change her male forename, on the grounds that she had not yet undergone gender reassignment surgery and that no final judicial decision had been given confirming gender reassignment.

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found in particular that the applicant’s inability to obtain a change of forename over a period of two and a half years, on the grounds that the gender transition process had not been completed by means of gender reassignment surgery, amounted to a failure by the State to comply with its positive obligation to secure the applicant’s right to respect for her private life.

Uncertain Law

Y.T. v. Bulgaria case concerned a transsexual who had taken steps to change his physical appearance and whose request for (female to male) gender reassignment had been refused by the Bulgarian courts..

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the Bulgarian authorities’ refusal to grant legal recognition to the applicant’s gender reassignment, without giving relevant and sufficient reasons, and without explaining why it had been possible to recognise identical gender reassignment in other cases, had constituted an unjustified interference with the applicant’s right to respect for his private life.

Amend ID Documents

Rana v. Hungary Born a female in Iran, the applicant, a transgender man who had obtained asylum in Hungary, complained about the Hungarian authorities’ refusal to change his name and sex marker from “female” to “male” in his identity documents.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that a fair balance had not been struck between the public interest and the applicant’s right to respect for his private life owing to the refusal to give him access to the legal gender recognition procedure.

X. and Y. v. Romania case concerned the situation of two transgender persons whose requests for recognition of their gender identity and for the relevant administrative corrections to be made were refused on the grounds that persons making such requests had to furnish proof that they had undergone gender reassignment surgery.

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the domestic authorities’ refusal to legally recognise the applicants’ gender reassignment in the absence of surgery had amounted to unjustified interference with their right to respect for their private life.

Parental Rights

A.M. and Others v. Russia concerned a court decision to restrict the parental rights of the applicant, a post-operative transgender woman, and to deprive her of contact with her children on account of her gender transitioning and the allegedly negative effect it might have on her children’s psychological health and development.

The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the Russian courts had failed to make a balanced and reasonable assessment of the case, and that the restriction of the applicant’s parental rights and of her contact with her children had not been “necessary in a democratic society”. T

The Court also held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction Article 8 in respect of the applicant, finding that the decision to restrict her contact with her children had amounted to discrimination. It noted, in particular, that the applicant’s gender identity had played a significant part – indeed it had been the decisive factor – in the domestic court decisions.

Various

Y.Y. v. Turkey concerned the refusal by the Turkish authorities to grant authorisation for gender reassignment surgery on the grounds that the person requesting it, a transsexual, was not permanently unable to procreate. The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention finding that, in denying the applicant, for many years, the possibility of undergoing such an operation, the Turkish State had breached his right to respect for his private life.

In Grant v UK there was a breach where the UK authority failed to recognise the female status of the applicant for the purpose of state retirement age for women at 60.

In Van Kuck v Germany there was said to be a violation of Article 8 where the German courts had confirmed a health insurer’s refusal to reimburse gender reassignment and hormonal treatment costs, in the particular circumstances concerned.