Last Updated on November 22, 2019 by LawEuro
Communicated on 11 September 2019
THIRD SECTION
Application no. 23872/19
A.S.
against Russia
lodged on 25 April 2019
STATEMENT OF FACTS
1. The applicant, A.S., is a Russian national, who was born in 1992 and lives in Yekaterinburg. She is represented before the Court by Mr I.F. Lemzyakov, residing in Yekaterinburg.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is a male-to-female transgender person. At the material time the applicant was not in possession of a medical certificate requisite for gender reassignment medical procedures and legal recognition of transition. Currently the applicant has such a certificate.
4. On 2 March 2017 the applicant lodged an application with civil status registration authorities seeking to change her grammatically and semantically masculine Russian name, patronymic and surname to Amari Jay Nightingale (name, patronymic and surname respectively), which in the Russian language would not indicate grammatical or semantic gender.
5. On 27 March 2017 civil status registration authorities refused to change the applicant’s name. In the relevant part the notification of that decision reads as follows:
“Under sections 1 and 4 of Article 19 of the Civil Code and Article 70 of Civil Statuses Act of 1997 [please be advised] that “a person acquires rights and discharges obligations under his own name, which includes a surname, a first name, and a patronymic, unless otherwise provided by law or national customs.”
Article 19 of the Civil Code stipulates that [identification of a person is achieved by a number of means, including gender, place of residence, date and place of birth, serial number of an identity document; however, primarily by a name].
The applicant’s request is refused, since a positive response would create incoherence of [personal data]: proper nouns of indeterminate gender. The file has no evidence to demonstrate that changing the surname from [S] to Nightingale, the first name [A] to Amari, the patronymic [G] to Jay would not lead to the applicant acquiring a name of another person, who has an identical name.
Accordingly, [please be advised that your application for the change of a masculine name, patronymic, and surname, to a name, patronymic and surname with indeterminate gender] may not be granted, since the chosen surname, name and patronymic – Nightingale Amari Jay – do not identify you as a person of a masculine gender, while according to your [identity documents] your gender is masculine. This is not permissible, since it may create uncertainty for third parties about identity of [a person].”
6. The applicant challenged the refusal in courts. The complaint stated in particular that (1) the change of name was a “private matter” of a person, who freely exercised relevant rights; (2) the chosen name was an invented name and its registration could not lead to acquiring another person’s name; (3) there was no legal requirement to choose a name determined by a certain gender; 4) the applicable legislation in force did not set requirements for a name and therefore the refusal had been unlawful.
7. The Verkh-Isetskiy District Court of Yekaterinburg (the District Court) held an administrative hearing on the applicant’s action. During the hearing the applicant stated that she identified herself as female, that she was in process of “correcting” her gender and that she wished to have a gender reassignment surgery. Since changes in her physical appearance preceded the surgery, she wished to change her name to facilitate her search of employment. The chosen name was invented, did not belong to any specific person, and was gender-neutral, thus attributable to both men and women.
8. On 1 August 2017 the District Court dismissed the applicant’s action. It stated in particular:
“…
[The decision of the civil status registration authority] is lawful, since it reasonably states that a combination of a foreign surname, name and patronymic, chosen by [the applicant], does not identify him as a person of masculine gender [and] that is contrary to the rules and traditions of the Russian language.
[The civil status registration authority] appropriately stated that the chosen surname, name, and patronymic may lead [other persons] into uncertainty about [the applicant’s] gender identification.
The traditions and practice of the peoples of Russia established a unified naming norm; the name determines gender identification of a person.
…
In Sverdlovsk Region, as a subject of the Russian Federation, no law was adopted establishing procedure for assigning a patronymic, other than on the basis of a father’s name. A patronymic is a special style of formalising a name of a person’s father, which is integrated in [that person’s] name; a characteristic of Russian naming system. For certain reasons and under various circumstances of life a person, under the legislation in force, may change a patronymic assigned at birth, to a patronymic derived from the name of a step-father, a grandfather or another person who raised and cared for [the person wishing to change it]. The patronymic is a special aspect of a Russian name, according to the national tradition a patronymic identifies a person along with a name and surname.
[The applicant’s claims about a violation of Article 8 of the Convention are unfounded.]
…
The court dismisses the administrative complaint, since the name chosen by [the applicant] – Nightingale Amari Jay – is gender-neutral, does not allow third parties to identify him as a person of masculine gender, which in combination with the changes in his physical appearance, might result in confusion, cause uncertainty for the third parties and lead to infringement of their rights and freedoms.”
9. On 25 October 2017 the Sverdlovsk Regional Court (the Regional Court) annulled the lower court’s judgment as adopted in breach of jurisdictional rules and ordered reconsideration. The Regional Court stated that the case should have been considered in civil, not administrative, proceedings.
10. On 15 December 2017 the District Court dismissed the applicant’s action. Having considered the provisions of the Civil Code, Civil Status Act of 1997, Article 8 of the Convention, and constitutional provisions on restrictions on rights, it stated in particular
“…
The traditions and practice of the peoples of Russia established a unified naming norm, the name determines gender identification of a person.
The patronymic is a special aspect of a Russian name, according to the national tradition a patronymic identifies a person along with a name and surname.
…
In the present case the claimant touches upon a special aspect of Russian names. According to the national tradition, a person is identified – apart from a name and a surname – by a patronymic. For persons of masculine gender a patronymic is derived from a name of a father with the use of the affix ‘-ich’. While in respect of children a patronymic is virtually not used, for the adults it had become an obligatory manner of identifying a person and [an integral] part of a full name of a person.
… The name chosen by the applicant – Nightingale Amari Jay – is gender-neutral and does not allow third parties to identify him as a person of masculine gender; given the absence of any objective reasons causing the claimant’s wish to change his name, surname and patronymic, the court concludes that the refusal to change his name does not create obstacles in exercise of his right [to respect] of his private life …”
11. The applicant appealed referring to the constitutional provisions according to which Russia is a multinational state. She challenged the existence of the naming tradition and practice of the peoples of Russia, indication of a person’s gender by the use of patronymic, as a special aspect of Russian names, and derivation of a patronymic from a father’s name. She contended that since the USA nationals living in Russia were a part of the multinational people, she had chosen the name ‘Jay’ according to their customs. In her opinion the District Court had failed to establish her ethnicity and reasoned the judgment only with reference to Russian traditions. She further stated that the gender-neutral names were used in practice and there was no legal obligation to choose a name attributable to a certain gender. Lastly, she considered that the change of name is a “private matter” of every person.
12. On 5 April 2018 the Regional Court dismissed the applicant’s appeal. It stated in particular:
“…
The claimant [wishes to have] a name of indeterminate gender, while, in essence, [it is an attempt] not as much to change a name, as to bypass the procedure established by the Russian legislation for the change of gender, which also implies the change of name in accordance with a chosen gender.
…
[Under Article 70 of the Civil Status Act the decision to change civil status registration records is taken inter alia after the deposition of a document on gender reassignment issued by a medical organization in the form and following the procedure established by [a federal executive authority]
…
Accordingly, a refusal to change a name does not restrict the claimant’s right to change gender in accordance with the established rules, rather than bypassing them …”
13. On 28 August 2018 the Regional Court sitting in a single judge formation dismissed the applicant’s first cassation appeal. The judgment stated in particular that (1) there was no evidence that the applicant in fact used the chosen name in everyday life; (2) the rights were not absolute and they were restricted by law, interests of the society and the rights of others; (3) the adopted judicial acts in no way restricted the applicant’s freedom to identify herself in private life as a person of any gender and to use whatever name she chose.
14. On 8 November 2018 the Supreme Court of the Russian Federation sitting in a single judge formation dismissed the applicant’s second cassation appeal. It endorsed the District Court’s reasoning that there had been no objective reasons triggering the applicant to change name. The name chosen by the applicant was gender-neutral, but the national legislation, as well as traditions of the peoples of Russia did not foresee the use of names with indeterminate gender. A name must indicate a person’s gender (as an identification criterion), but the chosen name did not allow to identify the applicant as a person of masculine gender, which could cause uncertainty for the third parties. Lastly, the Supreme Court stated that the lower courts’ judgments had not made the change of name conditional on the change of gender, and on the contrary, they had clearly established that the refusal to change name had not restricted access to change of gender procedure prescribed by law.
B. Relevant domestic law
15. Article 19 of the Civil Code of the Russian Federation in the relevant part provides as follows:
Article 19. Name of a person
“1. A person acquires [civil] rights and discharges [civil] obligations under his own name, which includes a surname, a first name, and a patronymic, unless otherwise provided by law or national customs …
2. A person may change his name following the procedure prescribed by law …
3. A name given to a person at birth, as well as the change of name, are subject to state registration following the procedure prescribed for registration of civil status acts.
…”
16. Article 58 of the Family Code of the Russian Federation regulates the procedure for giving names to children and establishes that the assignment of patronymics is a matter of shared jurisdiction between the federal and the subjects of federation levels. It provides the following:
Article 58. Right of a child to name, patronymic and surname
“1. A child has the right to a name, patronymic and surname.
2. A name is given to a child upon consent of parents, a patronymic is assigned depending on the name of a father, unless otherwise provided by laws adopted by the subjects of the Russian Federation or by the national customs.
…”
17. In May 2017 section 2 of Article 58 of the Family Code was amended and the following sentence was added to it:
“Theparents’choiceofnameforthechildmaynotincludetheuseof numerical digits, signifiers consisting of letters and numerical digits, numerals, symbols, which are not letters, except for hyphen, or their combinations or invective words, references to rangs, positions, titles.”
18. Civil Status Act of 1997, which provides comprehensive legislative regulation on various matters pertaining to registration of civil statuses, in the relevant part reads as follows:
Title VII. State registration of the change of name
Article 58. Change of name
“1. A person, who attained the age of fourteen, may change name, including a surname, [first] name and (or) patronymic.
…
5. Thechangeofnameissubjecttostateregistrationbycivilstatus registration authorities.”
Article 59. Application for the change of name
“An application for a change of name is deposited personally and in writing with civil status registration authorities by a person wishing to change name.
The application contains the following information:
[the applicant’s] surname, [first] name, patronymic, date and place of birth, nationality, ethnicity (if the applicant wishes to indicate it), place of residence, civil status (married/not married, widowed, divorced);
…
surname, [first] name and (or) patronymic chosen by the applicant wishing to change name;
reasons for the change of surname, [first] name and (or) patronymic;
[The applicant] signs and dates the application for the change of name …”
Article 60. Procedure for state registration of the change of name
“1. The state registration of the change of name is executed on the basis of an application for the change of name
…
5. In cases where a person wishing to change name is refused state registration of the change of name, a head of a civil status registration authority shall notify [that person] in writing about the reasons for the refusal …”
Article 69. Grounds for corrections and changes of civil status registration records
“1. Corrections and changes of civil status registration records are executed by civil status registration authorities in view of the grounds listed in section 2 of this Article …
2. The grounds for corrections and changes of civil status registration records are:
…
change of name registration record;
…”
Article 70. Decision of a civil status registration authority on corrections and changes of civil status registration records
“The decision on corrections and changes of civil status registration records is adopted by a civil status registration authority in [the following] cases:
…
deposition of a document on gender reassignment, which is issued by a medical organization in the form and following the procedure established by [a federal executive authority]
…”
COMPLAINT
The applicant complains under Article 8 of the Convention about the national authorities’ refusal to change her name.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for her private life, within the meaning of Article 8 § 1 of the Convention?
2. If there has been an interference, was that interference in accordance with the law within the meaning of Article 8 § 2 of the Convention? Was it necessary in a democratic society?
3. Has there been a breach of a State’s positive obligations under Article 8 of the Convention?
4. Given the national authorities’ references to the national traditions, naming norms, as well as grammatical rules governing the issue, what are these traditions, norms and rules? What are the legislative and regulatory provisions, which define and list the above applicable naming rules?
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