On April 6, 2017, the European Court of Human Rights (ECtHR) ruled that France’s requirement that two transgender applicants first undergo an irreversible identity change through an operation or sterilizing treatment in order to correct their “sex” designation on their birth certificates violated Article 8 (right to respect for private life) of the European Convention on Human Rights. The ECtHR determined that such a requirement impermissibly conditioned the recognition of the right to respect for private life on forgoing the right to respect for one’s physical integrity. See ECtHR, AP., Garçon and Nicot v. France, Nos. 79885/12, 5247/13, 52596/13, ECHR 2017, Judgment of 6 April 2017, para. 131 (French version). The ECtHR found no violation of Article 8, however, where French law required an applicant to prove that they suffered from gender identity disorder before the State would grant a change to their birth certificate under the category of “sex.” See id. at para. 139. Similarly, the ECtHR held there was no violation of Article 8 where an applicant was ordered by a French court to undergo a medical examination to confirm the applicant’s sex reassignment surgery. See id. at para. 150-152.
The Court did note the expansion of transgender rights at the national and international levels, including in France where since the applicants submitted their claims, the law has changed so that corrections to official sex designations are no longer conditioned upon irreversible medical procedures or sterilization treatments, but rather require publicly presenting oneself as the claimed sex; being recognized by family, friends, and colleagues as their claimed sex; and evidence that their name has been changed to correspond with their claimed sex. The Council of Europe has called for an end to the practice of conditioning the recognition of an individual’s chosen gender identity in official documents on medical procedures and treatment. See id. at paras. 68-69, 75-77.
Facts of the Case
The first applicant, A.P., was born male, identified as female, and was diagnosed with gender identity disorder in 2006; thereafter, A.P. represented themselves as a female and began hormone therapy. See id. at para. 8. A.P. emphasized that they did not initially intend to undergo sexual reassignment surgery but did so in order to change their status under the category of “sex” on their birth certificate. See id. at paras. 11-12. In September 2008, A.P. initiated court proceedings to change the designation under “sex” on their birth certificate and to change their name to a female name. See id. at para. 16. A.P. submitted four medical certificates supporting A.P.’s gender identity request, including a document certifying their gender reassignment surgery in Thailand and other documents addressing their hormonal treatments, cosmetic surgeries, speech-language training to feminize their voice, and psychiatric evaluations confirming their identity. See id. at paras. 12-15. In February 2009, the domestic court ordered a report requiring A.P. to undergo physiological, biological, and psychological examination. A.P. refused to undergo the examination because it was costly and infringed upon their physical integrity. The court subsequently dismissed the action. See id. at paras. 17-21. The appellate court upheld the lower court’s judgment to dismiss the sex assignment change but ordered the desired change to A.P.’s name. See id. at paras. 22-26.
The second applicant, Garçon, born male, identified as female from an early age but concealed their identity for many years due to social pressure. See id. at para 33. As an adult, Garçon altered their physical appearance to be feminine, began hormonal treatment in 2004, and underwent surgery to create female reproductive organs. See id. at paras. 33-35. In March 2009, Garçon brought proceedings to the domestic court to change their sex designation on their birth certificate and to change their name to a female name. See id. at para. 36. In February 2010, the domestic court held that Garçon did not prove they had gender identity disorder and, thus, dismissed their claims. See id. at para. 37. The appellate courts upheld the lower court’s ruling. See id. at paras. 38, 40.
The third applicant, Nicot, was born male and identified as female, but they hid this identity for fear of bullying and custody battles over their daughter. See id. at paras. 42-43. In June 2007, Nicot instigated proceedings before the domestic court in order to change their sex designation on their birth certificate and to recognize their desired female name. See id. at paras. 42-44. In November 2008, the domestic court ordered Nicot to submit medical documents to prove their gender identity change was effective. See id. at paras. 44-45. Nicot refused to submit the requested documents because they felt they had sufficiently proven their gender identity, and as a result, in March 2009 the domestic court dismissed the action. See id. at paras 47-48. The appellate court upheld the lower court’s ruling. See id. at paras. 49-52.
The ECtHR ruled that the obligation to undergo an irreversible change in identity in order to change the sex designation on an official document is a violation of Article 8 (right to private life). See id. at para. 131. Specifically, the ECtHR held that conditioning the recognition of gender identity on medical procedures or sterilizing treatments that the individual did not otherwise wish to undergo amounted to forcing transgender individuals to choose between exercising their right to respect for private life or their right to respect for their physical integrity. See id.
The ECtHR applied a narrow margin of appreciation to the State because physical integrity and essential aspects of personal identity and autonomy were at issue. Specifically, the Court noted that physical integrity is at issue when sterilization is involved and that sexual identity is essential to the right to respect for private life. See id. at paras. 121-125. Furthermore, the ECtHR noted that among European States there is a trend of getting rid of the requirements that would cause sterilization and that international actors and human rights defenders were generally perceived as favoring abandoning conditions of sterility. See id. at paras. 124-125.
Ultimately, the ECtHR held that France had failed to adequately balance the State’s general interests and the interests of individuals; the State failed to meet its positive obligation to guarantee the right to private life by requiring irreversible changes in identity in order to correct an individual’s sex designation. See id. at para 126. The Court issued this holding only with respect to Garçon and Nicot’s situations; A.P.’s claim that their Article 8 rights were also violated for this same reason was inadmissible, the Court held, because they had not challenged the obligation to undergo an irreversible change in domestic courts, failing to exhaust domestic remedies. [ECtHR Press Release]
The ECtHR held that there was no violation of Article 8 (right to private life) where transgender persons were required to prove that they suffered from gender identity disorder in order to receive changes to their designated sex on official documents. See AP., Garçon and Nicot v. France, Judgment of 6 April 2017, paras. 141-144. The ECtHR relied on its observation that the majority of Member States require proof of gender identity disorder. While the Court also noted that there is a consensus among States in the region that such a requirement did not directly implicate one’s physical integrity, the Court held that sexual identity is at issue but States have a wide margin of appreciation in imposing the requirement. See id.
Regarding A.P.’s case, the ECtHR found that there was no violation as a result of the obligation to undergo a medical examination to confirm their sex reassignment surgery since the order was within the Court’s assessment of the evidence and discretion to verify that evidence. Additionally, the order did not appear to be arbitrary. See id. at paras. 150-154.
Council of Europe Standards
In 2010, the Parliamentary Assembly of the Council of Europe (PACE) passed Resolution 1728 that ensured that transgender persons could obtain official documents reflecting their desired gender identity without first having to undergo medical procedures, such as sexual reassignment surgery or hormone therapy. See id. at para 75. In 2015, the PACE passed Resolution 2048 that required Council of Europe Member States to abolish the conditions of medical treatments and the diagnosis of gender identity as a mental disorder in national laws governing recognition of chosen gender identity. See id. at para 77.
The United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment published a report in February 2013 that urged States to repeal laws imposing invasive or irreversible medical treatments on transgender persons and that specifically called for an end to compulsory sterilization. See id. at para. 80. Additionally, in 2014 several prominent inter-governmental organizations, including the World Health Organization (WHO), the Office of the High Commissioner for Human Rights (OHCHR), and the United Nations Population Fund (UNFPA), among others, issued a joint statement condemning forced sterilization of transgender persons as inconsistent with international and regional obligations to respect physical integrity, self-determination, and human dignity. See id. at para. 81.
During the three-month period following this Chamber’s judgment, either party may request that the case be referred to the Grand Chamber of the Court pursuant to Articles 43 and 44 of the ECHR. If a party requests review of the judgment, a panel of judges will either refer the case to the Grand Chamber or refuse the referral, making this judgment final on that day.