A.D. and Others v. Georgia (European Court of Human Rights)

Information Note on the Court’s case-law
November 2022

A.D. and Others v. Georgia – 57864/17, 79087/17 and 55353/19

Judgment 1.12.2022 [Section V]

Article 8
Positive obligations
Article 8-1
Respect for private life

Transgender men unable to obtain legal recognition of their gender without having undergone medical procedures to change their sex characteristics, due to imprecision of legal framework: violation

Facts – The applicants are three transgender men who made a request to the Civil Status Agency (“the agency”) to change the sex/gender marker in their civil-status records from female to male. The agency rejected the applicants’ requests on the basis that they had not shown that they had undergone medical sex reassignment procedures. Therefore, they had not changed their sex within the meaning of section 78(g) of the Civil Status Act 2011, as was required by that provision to amend public records. The applicants unsuccessfully challenged the authorities’ refusal in this regard.

Law – Article 8:

(a) Applicability – The Court reiterated that issues relating to the legal recognition of the gender identity of transgender people – which were essentially construed around the question of whether and under which exact legal conditions sex/gender markers could be changed – fell squarely, by virtue of being an important component of transgender people’s right to personal identity, development and physical and moral security, within the scope of the right to respect for private life under Article 8 and that Article was therefore applicable.

(b) Merits – There was an enforceable right under Georgian law to have one’s sex marker changed in civil-status records. However, the key problem was that it was not clear what the legal regime for the change of the sex/gender marker actually was in Georgia. Namely, the law was silent about the terms and conditions to be fulfilled and, if so required, the medical procedures to be followed for legal gender recognition to take place. The Court found it established that domestic law and practice did not provide any indication of the exact nature of the medical procedures to be followed.

The Government submitted the expression “change of sex” in section 78(g) of the Civil Status Act had to be assessed on “biological, physiological and/or anatomical criteria”. However, considering the lack of any legislative clarification, it was not clear what their reading of the law was based on. Indeed, the utmost care and precision was required when using such different terms interchangeably, because each of those terms had its own particular meaning and entailed distinct legal implications. Moreover, there had been a clear contradiction in how the domestic courts had handled the third applicant’s case. Thus, whilst the Court of Appeal had stated that the completion of hormonal treatment, with the resultant change in secondary sex characteristics, was not sufficient for legal gender recognition, the Supreme Court had suggested the contrary, notably that a medical certificate attesting to the “irreversibility” of the hormonal treatment was sufficient.

The inconsistencies in the reading of the domestic law by the domestic courts had been conditioned, at least in part, by the fact that the law itself had not been sufficiently detailed and precise. In this connection, even if prior to 15 December 2010 the domestic law had contained at least some indication that an application for legal gender recognition ought to be accompanied “by a medical certificate”, even that already minimal degree of precision had disappeared from the law after that date. The imprecision of the current legislation undermined, in its turn, the availability of legal gender recognition in practice and, as was illustrated by the three applicants’ individual situations, the lack of a clear legal framework left the gatekeepers – the competent domestic authorities – with excessive discretionary powers, which could lead to arbitrary decisions in the examination of applications for legal gender recognition. Such a situation was fundamentally at odds with the respondent State’s positive obligation to provide quick, transparent and accessible procedures for legal gender recognition.

Conclusion: violation (unanimously).

Article 41: EUR 2,000 awarded to each of the three applicants in respect of non-pecuniary damage.

(See also A.P., Garçon and Nicot v. France, 79885/12 and 2 others, 6 April 2017, Legal Summary)

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