April 24, 2015
The Y.Y v. Turkey decision deals with the process of gender recognition, which is one of the many pressing legal issues trans communities are struggling with in Europe. In its previous decision, the European Court of Human Rights has found that the State’s failure to modify the birth certificate of a person by recognizing the preferred gender constitutes a violation of the right to private life guaranteed by art. 8. For the first time, in Y.Y. v. Turkey, the Court examines the domestic requirements – in this case the sterilization requirement – which are necessary to obtain the legal recognition of the preferred gender.
Turkish law requires individuals wanting to undergo sex reassignment surgery (SRS) to obtain an authorization from the court. The authorization is only granted when the individual has proven to be unable to procreate; once he/she undergoes the operation, he/she will be allowed to change her/his legal gender. In this case, the plaintiff – who identifies as a man – argued that the refusal to grant him this authorization because he was not sterilized infringed upon his right to private life guaranteed by the Convention.
The Court found that the refusal to authorize the SRS constitutes an interference with the applicant’s right to private life, which needs to be seen in connection with the individual’s right to personal development (par. 57) and autonomy, including the ability to make decisions concerning one’s body (par. 65). It concluded that although it could be argued that the regulation of the SRS by the State is pursuing a legitimate aim (i.e. protection of health) (par. 79), in this case, the sterilization requirement, which justified the state’s refusal to grant the above-mentioned authorization, is not necessary to pursue the legitimate objective put forward by the State (par. 121).
I wish to flag two aspects of this decision: its potential impact in other jurisdictions and the legal problems – at the level of both methodology and human rights practice – raised by trans individuals’ gender recognition.
Whether or not this decision has an impact beyond this specific case is an important question for trans activists, judges and other policy-makers, because in a vast majority of states sterilization is one of the key requirements for obtaining gender recognition. In their concurring opinions, judges Keller and Spano note that the majority’s decision is ambivalent on this point, and that the Court should have clearly stated whether sterilization as such is contrary to article 8.
Different elements of the Court’s analysis however, support the view that sterilization is contrary to the Convention and it seems highly unlikely that any similar state measure would pass the test of article 8.2. In its assessment of whether the measure is necessary, the Court strictly polices the state margin of appreciation, which seems to be narrow because gender recognition touches upon a most intimate aspect of one’s identity. Here, the Court notes that what is at stake is the freedom to define one’s gender identity (“appartenance sexuelle”), a crucial component of the right to self-determination (par. 102).
Another reason why the margin of appreciation is narrow is because – as the Court notes – an “international trend” constraining the action of the state has emerged. The Court mentions different European legal texts urging states to reconsider their requirements for allowing gender change and abandon the sterilization requirement, and argues that this is already the case in many jurisdictions (paras. 106-110).
After assessing the state’s margin of appreciation, the Court proceeds with the examination of the concrete situation, but goes on to generalize its finding, stating that in any case (“en tout état de cause”) sterilization is incompatible with respect for individual integrity (par. 119).
Where does this decision leave us in term of trans individuals’ right to their gender recognition? As the Court points out in its careful and detailed comparative analysis of different state laws regulating gender change, even absent the sterilization requirement, most often changing the legal gender requires the intervention of medical experts, who determine whether the person is suffering from ‘gender dysphoria,’ considered as a mental disorder according to the World Health Organization (see the International Classification of Diseases (ICD-10), ‘transexualism’ is classified as a ‘mental and behavioral disorder’). In other words, in many jurisdictions in Europe (except in Denmark and recently Malta) law entrenches the medical pathologization of trans identities, which reinforces the stigma and humiliation faced by trans communities.
For lawyers, this decision raises two general questions that go beyond the specifics of the Y.Y. v. Turkey case. The first one pertains to the role of medical expertise in legal decision-making. In order to obtain the legal recognition of their gender, trans individuals need to convince medical experts that they suffer from a mental condition. Law is relying on criteria and assumptions about gender set by the medical community instead of determining this issue according to legal principles. This brings me to the second question regarding the links between the pathologization of trans identities and the values promoted by the Convention and human rights in general. In Y.Y. v. Turkey the Court stresses the importance of individual autonomy, freedom and dignity, which underpin the Convention. Pushing the Court’s reasoning further allows lawyers, activists and policy-makers to challenge the current medicalization of trans issues and to offer a legal, namely a human rights-based approach to the question of gender recognition.
 Ivana Isailovic is currently working on trans individuals’ rights and reproductive and sexual rights within the framework of the Equality Law Clinic, recently launched at ULB. Her research also focuses on transnational family law and private economic law.
 I use the term ‘trans’ in order to indicate people and communities whose gender identity does not correspond with the sex assigned at their birth. Trans individuals express their gender identity according to a variety of patterns. They might identify with the categories male or female, transsexual or transgender, or refuse to do so and chose to identify with other categories on the gender spectrum.