ECtHR: Refusal to Authorize Gender Reassignment Surgery Violates Convention

The European Court of Human Rights   Credit: Council of Europe

The European Court of Human Rights
Credit: Council of Europe

On March 10, 2015, the European Court of Human Rights (ECtHR) released its judgment in Y.Y. v. Turkey, where it unanimously held that the State’s refusal to authorize gender reassignment surgery for the transsexual applicant violated the right to respect for private life under the European Convention of Human Rights. See ECtHR, Y.Y. v. Turkey, no. 14793/08, Judgment of 10 March 2015 (decision is currently being processed). The Court reasoned that the State’s grounds for denying the surgery – including that the applicant was not unable to procreate – were not sufficient, and that the State’s interference with Y.Y.’s right to respect for his private life was not “necessary” in a democratic society, thus violating Article 8 of the European Convention. The Court stated that transsexuals’ rights to personal development and physical and moral security “could not be regarded as a matter of controversy.” [ECtHR Press Release]

Facts and Procedural Background

On September 30, 2005, the applicant, who is a trans man (registered as a female at the time of the application), applied to the Mersin District Court for authorization to have gender reassignment surgery. Article 40 of the Turkish Civil Code required, inter alia, that the applicant must be permanently unable to procreate in order for gender reassignment surgery to be authorized. The court inquired as to whether the gender reassignment was necessary to preserve the applicant’s mental health and whether the applicant was permanently unable to procreate. Physicians informed the court that it would be better for Y.Y.’s mental health to have the surgery and that Y.Y. was not permanently unable to procreate. On June 27, 2006, the district court rejected Y.Y’s application on the basis that Article 40 of the Turkish Civil Code was not satisfied, because he was able to procreate. Y.Y. appealed the decision, but the district court’s judgment was upheld. [ECtHR Press Release]

Y.Y. lodged an application with the European Court on March 6, 2008 asserting that Turkey had violated the right to respect for his private life (Article 8) and the right to a fair hearing (Article 6 § 1) under the European Convention on Human Rights. [ECtHR Press Release]

On March 5, 2013 and while his complaint was still pending before the European Court, Y.Y. submitted a new application to the Mersin District Court to have the surgery authorized. This time the court did authorize the procedure on the basis that Article 40 of the Civil Code was met because Y.Y. was transsexual, a gender reassignment was necessary to protect Y.Y.’s mental health, and Y.Y. lived his life as a man in every respect. [ECtHR Press Release]

The European Court’s Reasoning

The European Court examined whether Article 40 of the Turkish Code, which conditions approval for gender reassignment surgery on the permanent inability to procreate, and which formed the basis for the District Court’s decision, conforms with the right to respect for private and family life. The European Court acknowledged that the State had intended, through Article 40, to pursue the legitimate aim of protecting the health and interests of individuals. However, the Court stated that it could not comprehend why the inability to procreate must be established before gender reassignment surgery could be authorized, reasoning that the applicant could not satisfy the requirement unless the applicant underwent sterilization. The European Court found that while the State’s interference with the applicant’s private life may have been based on a relevant ground, that ground was not sufficient. The Court held that the State’s interference could not be considered “necessary” in a democratic society, and that the State’s denial of authorization to undergo the surgery breached Y.Y.’s right to respect for private life. [ECtHR Press Release]

The European Court rejected the applicant’s complaint that the State had violated his right to a fair hearing, noting that Article 6 § 1 does not require State courts to address all points of an applicant’s argument. The European Court found that the Turkish court had provided an adequate explanation for its decisions. [ECtHR Press Release]

In its decision, the Court drew attention to the Committee of Ministers’ recommendation that any requirements which applicants must meet in order to have their gender reassignment legally recognized should be reviewed regularly to ensure that they are not abusive. Additionally, the Court referenced the Parliamentary Assembly of the Council of Europe’s resolution announcing that Member States should guarantee transsexuals the right to “official documents that reflect an individual’s preferred gender identity, without any prior obligation to undergo sterilization or other medical procedures such as sex reassignment surgery and hormonal therapy.” See Parliamentary Assembly of the Council of Europe, Resolution 1728: Discrimination on the basis of sexual orientation and gender identity, 29 April 2010.

Similar Cases Involving Gender Identity

The European Court has heard multiple cases concerning trans persons’ human rights. In earlier cases the Court did not require States to legally recognize transsexuals’ gender identity. See, e.g., ECtHR, Rees v. United Kingdom, ECtHR, Series A no. 106, Judgment of 17 October 1986.

However, this changed with the landmark case of Christine Goodwin v. United Kingdom, where the Court found that the State’s refusal to legally recognize the sex change of a post-operative transsexual violated the applicant’s right to private life and right to marry and found a family. See ECtHR, Christine Goodwin v. United Kingdom [GC], no. 28957/95, ECHR 2002-VI, Judgment of 11 July 2002, paras. 93, 104. In that case, the applicant experienced difficulties in pursuing a sexual harassment claim, was unable to obtain a modified birth certificate and new National Insurance number, and was ineligible for a government pension for an additional five years due to the State’s failure to recognize her sex change. See id. at paras. 15–19.

The European Court has also heard cases regarding insurance coverage for gender reassignment surgery. For example, in Van Kück v. Germany, the State had required the applicant to prove her transsexuality and the medical need for the gender reassignment surgery in order to reimburse her medical expenses. See ECtHR, Van Kück v. Germany, no. 35968/97, ECHR 2003-VII, Judgment of 12 June 2003, paras. 3, 78–81. The Court held that this approach violated the applicant’s rights to a fair trial and to respect for her private life, reasoning that the State failed to strike an appropriate balance between the interests of the insurance company and those of the applicant. See id. at paras. 63–65, 82–86.

Additional Information

The European Court of Human Rights has released a factsheet summarizing its jurisprudence on gender identity issues. For more information about the European Court of Human Rights, see IJRC’s Online Resource Hub. To learn more about how international human rights law protects LGBTI persons, see IJRC’s Thematic Research Guide.