Last Updated on February 10, 2021 by LawEuro
Information Note on the Court’s case-law 247
January 2021
X and Y v. Romania – 2145/16 and 20607/16
Judgment 19.1.2021 [Section IV]
Article 8
Positive obligations
Article 8-1
Respect for private life
Refusal of national authorities to recognise male identity of transgender persons in the absence of gender reassignment surgery: violation
Facts – The applicants, who are transgender persons, lodged requests to have the details on their identity papers concerning their gender, forenames and personal digital code corrected. Their requests were refused by the administrative and judicial authorities on the grounds that persons making such requests had to furnish proof that they had undergone gender reassignment surgery.
Law – Article 8
(a) Applicability:
The right to respect for private life encompassed gender identification as an aspect of personal identity. This applied to all individuals, including transgender persons like the applicants, whether or not they wish to undergo gender reassignment treatment approved by the authorities. Article 8 was therefore applicable in the present case in its “private life” aspect with regard to the applicants’ requests to the national courts to have the civil-status records amended on account of their gender reassignment.
Conclusion: applicable
(b) Merits:
The main issue to be determined was whether the regulatory arrangements in place and the decisions taken concerning the applicants allowed the Court to find that the State had complied with its positive obligation to respect their private life.
i. Existence of an appropriate legal framework for the recognition of gender reassignment
There was no specific procedure under Romanian law for dealing with requests for legal recognition of gender reassignment, as was the case in Italy. However, under the existing law transgender persons had been able to have their gender reassignment recognised by the courts and to have their civil‑status records amended. Thus, a legal basis existed in Romanian law allowing individuals to bring proceedings in order to have the substance of their requests relating to gender reassignment examined.
Nevertheless, the national courts had encountered difficulties in ruling on these sensitive issues, which were evolving continuously. Examples of decisions revealed some uncertainty as to the procedure to be followed for the recognition of gender reassignment, which court had jurisdiction and against which defendant the action should be brought. Furthermore, with regard to the conditions to be satisfied in order to have a change of gender legally recognised and have the civil-status records amended accordingly, there had been divergences in the case-law, at least at the time when the applicants had brought their actions, regarding the requirement to first undergo gender reassignment surgery. Hence, it appeared that some courts had taken the view that the legislation required in all circumstances a prior decision authorising genital surgery, while others had taken a different view.
The Romanian legal framework for gender recognition had therefore not been clear and thus foreseeable.
ii. The requirement to undergo gender reassignment surgery in order to have the civil-status records amended
The domestic courts had ruled that the applicants were transgender on the basis of detailed information on their psychological and medical state and their lives in society. They had observed in particular that the applicants had undergone hormonal therapy and had had mastectomies before or during the proceedings. The courts had nevertheless refused to recognise the applicants’ gender reassignment or to authorise the amendment of the indication of gender and other information in the civil-status records, on the ground that the applicants had not had gender reassignment surgery. The courts had taken the view that the principle of self-determination did not suffice to grant the gender reassignment requests.
The applicants had not wished to undergo the surgery in question before obtaining legal recognition of their gender reassignment and for that sole purpose, and relied in substance on their right to self‑determination. In that regard the situation of the applicants in the present case differed from that of the applicants in the recent cases of S.V. v. Italy and Y.T. v. Bulgaria, who had wanted to have such surgery in order, as they saw it, to complete the gender reassignment process. By contrast, the situation was similar to that of the applicants in A.P., Garçon and Nicot v. France, in which recognition of gender reassignment had been made subject to sterilising surgery or treatment which the applicants did not wish to undergo. In that case the Court had proceeded on the basis that the requirement at the relevant time had arisen out of French positive law.
Unlike the applicants in A.P., Garçon and Nicot, the applicants in the present case did not focus particularly on the sterilising effect of the required operation, while acknowledging that the surgery could result in that outcome. But like sterilising surgery or treatment, the gender reassignment surgery required by the Romanian courts in the case of the applicants, who did not wish to have such surgery, clearly affected their physical integrity. In the French case the Court had held that any ambiguity surrounding the procedures for the legal recognition of gender was problematic where individuals’ physical integrity was at stake in the context of Article 8.
In that regard there had been diverging case-law regarding the requirement of prior gender reassignment surgery, at least at the time when the applicants had brought their actions. Furthermore, domestic law did not lay down any requirement to undergo such surgery in order to obtain legal recognition of gender, although that requirement had been cited as the reason for refusing the applicants’ requests.
Furthermore, in the proceedings brought by the applicants, the courts had in no way substantiated their reasoning as to the precise nature of the general interest weighing against allowing legal recognition of a change of gender. Likewise, the courts had not, within the margin of appreciation available to them – however narrow – conducted a balancing exercise between that interest and the applicants’ right to recognition of their gender identity. Accordingly, the Court was unable to identify the general-interest grounds that had led to the refusal to amend the information in the civil-status records to match the applicants’ gender identity. The reasons in the general interest cited by the Government had been intended only to justify the need for a court ruling and thus the judicial nature of the procedure, rather than as justification for the requirement to undergo gender reassignment surgery. Accordingly, those reasons were not capable of remedying the omission of the national courts.
The Court saw this as evidence of a rigid approach to the recognition of the applicants’ gender identity which had placed them for an unreasonable and continuous length of time in a distressing position apt to give rise to feelings of vulnerability, humiliation and anxiety. As in the case of A.P., Garçon and Nicot, the national courts had presented the applicants, who did not wish to undergo gender reassignment surgery, with an impossible dilemma: either they had to undergo the surgery against their better judgment – and thus forego full exercise of their right to respect for their physical integrity, which came within the scope of the right to respect for private life, but also of Article 3 of the Convention – or they had to forego recognition of their gender identity, which likewise came within the scope of the right to respect for private life. In the Court’s view, this upset the fair balance to be struck by the States Parties between the general interest and the individual interests of the persons concerned.
Moreover, an ever smaller number of Council of Europe member States required gender reassignment surgery as a prior condition for the legal recognition of gender identity. By 2020, twenty-six States no longer made it a requirement.
Thus, the domestic authorities’ refusal to legally recognise the applicants’ gender reassignment in the absence of gender reassignment surgery amounted to unjustified interference with their right to respect for their private life.
iii. Conclusion :
Accordingly, there had been no clear and foreseeable procedure for legal recognition of gender identity making it possible to amend a person’s indicated gender, and hence his or her name and digital personal code, on official documents in a quick, transparent and accessible manner. Furthermore, the refusal of the national authorities in the present case to recognise the applicants’ male identity in the absence of gender reassignment surgery had upset the fair balance to be struck by the State between the general interest and the interests of the applicants.
Conclusion: violation (unanimously).
Article 41: EUR 1,153 to the second applicant in respect of pecuniary damage; EUR 7,500 to each of the two applicants in respect of non-pecuniary damage.
(See also A.P., Garçon and Nicot v. France, 79885/12 et al., 6 April 2017, Legal summary; S.V. v. Italy, 55216/08, 11 October 2018, Legal summary; Y.T. v. Bulgaria, 41701/16, 9 July 2020, Legal summary)
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