It’s okay to discriminate transsexuals in the best interests of their children

This post has been written by Laurens Lavrysen, one of our colleagues at the Human Rights Centre.

In P.V. v. Spain (no. 35159/09), the European Court of Human Rights Court had to rule over an application by a male-to-female transsexual with regard to restrictions imposed on the contact arrangements with her son. Invoking Article 8 in conjunction with Article 14 of the European Convention, the applicant alleged to be discriminated against on the ground of her gender modification. The Strasbourg Court however agreed with the domestic courts that the restrictions could be considered as being in the best interests of the child and decided that this did not amount to a discrimination.

Domestic decisions

Before her gender reassignment, the applicant in 1998 had a son with her former wife. In 2002 the couple separated and in an amicable agreement, approved by a judge, the custody was awarded to the mother and the parental responsibility to both parents jointly. The son would spend every other weekend and half of the school holidays with his father.

In 2004 the mother applied to have the applicant deprived of her parental responsibility and to have the contact arrangements and any communication between father and son suspended, because she supposedly showed a lack of interest in the child and because she was undergoing hormone treatment with a view to gender reassignment and usually wore make-up and dressed like a woman.

The request to deprive the applicant of her parental responsibility was dismissed, but the domestic judge decided to restrict the contact arrangements to a three-hour meeting every other Saturday. Father and son would meet each other in a meeting center, in the presence of the mother and of professionals, for as long as this was considered necessary by these professionals. Every two months, the meeting center had to submit a report on the evolution of the visits. This was conform the advice of a psychologist that a normal contact regime was not desirable because of the emotional instability of the father and that a progressive regime of visits in a meeting center would be more appropriate. The judge explicitly stated that his decision was based on the emotional instability of the father and not on her gender modification itself. According to the judge, a six year old child does not yet possess the capacity to understand the gender reassignment of a parent.

Appeals against this decision were dismissed by the Audienca Provincial – although the Audienca acknowledged the good relation between father and son – in May 2005 and by the Constitutional Court in December 2008. The decision was considered to be based on the best interests of the child and not on the applicant’s status as a transsexual. In between these decisions, the contact arrangements were extended to five hours every other Sunday in February 2006 and to eight hours every other Saturday and every other Sunday in November 2006.

European Court

The European Court of Human Rights first of all adopted the approach used in the case Salgueiro da Silva Mouta v. Portugal (1999). In that case, the Court ruled that a decision in which parental responsibility was granted to the mother, based on the sexual orientation of the father was found to be in violation of Art. 8 on conjunction with Art. 12 of  the Convention. A decision to restrict contact arrangements, based on the gender reassignment of the father, therefore would be in violation of these provisions.

According to the Court the domestic judges took into account the emotional instability of the applicant, that was attested by a psychologist, and the risk that she would transmit this on her son. The decisive motive to restrict the contact arrangements was therefore that there existed a certain risk that the psychological integrity and the personality development of the child would be harmed. Because the decision was not based on the gender reassignment of the father, but on the best interests of the child, the Court distinguished this case from the case Salgueiro da Silva Mouta. The Court accepted that the Spanish authorities had acted in the best interests of the child by progressively accustoming the son to the gender reassignment of his father and found confirmation for this in the gradual extension of the contact arrangements. The Court thus found no violation of Article 8 in conjunction with Article 12 of the Convention.

Comment

According to Article 3, § 1 of the Convention on the Rights of the Child, the best interests of the child “shall be  primary consideration” in all actions concerning children. The European Court of Human Rights has shown itself willing to apply “the best interests of the child” as an interpretative principle in cases that relate to children (for example Johansen v. Norway (1996) with regard to the taking into care of a child by public authorities. (S.C. v. The United Kingdom (2004) with regard to criminal proceedings against children or C. v. Finland (2006) with regard to custody). The Court has however refrained from elaborating guidelines on how a best interests of the child analysis in the context of the European Convention on Human Rights should be applied. This case-to-case-approach introduces a factor of unpredictability in cases that have regard to children. Moreover, because of the vagueness of the principle, there is a clear risk of an arbitrary or even discriminatory abuse of “the best interests of the child”.

In this regard, it is regrettable that the Court made no effort to look into the psychological report on which the domestic decision was based. The Court did not question the psychologist’s opinion and simply accepted that the contact restrictions were in “the best interests of the child”. The little information in the judgment is not sufficient to rule out that the Court based its conclusion on one prejudiced psychologist who dislikes transsexuals. The Court should have dug deeper into the opinion, to rule out that risk. Apart from that, it would have been interesting if the Court had made some efforts to look into scientific research on the impact on children of the gender reassignment of their parents. Is it really that harmful for the development of the child as the domestic authorities considered it to be? Or is it on the contrary better to confront a child as much as possible with such a drastic change in order to familiarize him or her with the gender modification? And if not, are there no alternatives to such radical contact restrictions? This judgment does not provide these answer and thus leaves the reader confused. P.V. v. Spain could have been a flagship case, but because of a mere reference to the “best interests of the child”, it did not even leave the harbor.

Above all the judgment is inconsistent with earlier case-law, in which the Court acted as an emancipator of transsexuals’ rights. In the famous case Christine Goodwin v. The United Kingdom (2002), the Court for instance recognized the right of transsexuals to the legal recognition of their gender reassignment and stated that a transsexual should be able to marry with a person of the opposite sex. A logical next step would be to extend this openness to the relations between transsexuals and their children. Although the Court principally accepted that contact arrangements can’t be restricted on the basis of the gender reassignment of a parent, no efforts were made to reduce the risk of the discriminatory use of the “best interests of the child” criterion. Contrary to its rhetoric, the Court therefore failed to make the rights of transsexual parents practical and effective, rather than theoretical and illusory.