By Pieter Cannoot, PhD researcher of human rights law (Ghent University)
On 6 April 2017, the European Court of Human Rights significantly strengthened the human rights protection of trans persons, with its long-awaited judgment in the case A.P., Garçon and Nicot v. France. The Court ruled that the condition of compulsory sterilizing surgery or treatment for legal gender recognition violated Article 8 of the Convention. Nevertheless, the judgment also left some questions unanswered.
By way of introduction, it is important to point out that legal gender recognition in France occurs on the basis of a judicial procedure with the tribunal of first instance. At the time of the relevant facts, French law required the fulfilment of two medical conditions in order to have the sex marker on one’s birth certificate changed in the light of one’s gender identity. The applicant concerned needed to present proof of the real existence and persistence of the ‘syndrome of transsexuality’ and the ‘irreversibility of the transformation of the bodily appearance’ to the opposite sex. The courts were usually satisfied with evidence on the basis of medical and psychological certificates, but sometimes ordered the applicant to be subjected to a medical expert research in case of doubt. However, in October 2016, the French Assemblée Générale adopted new legislation regarding legal gender recognition in which it expressly excluded (proof of) sterilisation and other medical treatment or surgeries as compulsory requirements for legal sex change. Nevertheless, the new procedure is still based on judicial intervention.
All three applicants were born with typically male sex characteristics, which was reflected by the legal sex on their birth certificates. However, all three developed a female gender identity. In 2006, the first applicant, A.P., was diagnosed with ‘the syndrome of transsexuality’, and began transitioning both on a social and hormonal level. In 2008, A.P. underwent surgery in Thailand, after which the physician issued a certificate specifying the medical interventions. A.P. applied for a legal sex change in 2009 on the basis of the latter statement and several other medical certificates. However, the courts found that the certificates did not satisfactorily prove the irreversibility of the transformation of the bodily appearance and therefore commanded a psychiatric, endocrinological and gynaecological expertise. Given the fact that A.P. refused to undergo such expertise, the courts assumed that she did not meet the requirements for legal gender recognition. The second applicant, Garçon, was also denied recognition of her female gender, even though she had undergone hormonal treatment and genital surgery. However, she only relied on testimonies of her so-called ‘lived experience” and failed to provide sufficient medical certificates proving the existence of the ‘syndrome of transsexuality’. The third applicant, Nicot, had not undergone treatment when she applied for a legal sex change, but relied on her self-identification and the duration of her female expression instead. The courts denied the application, since no medical proof was available to assess whether Nicot was a ‘true’ transsexual person.
Interestingly, in the official French version of the judgment, the ECtHR chose to address the applicants with the male term ‘requérant’, to reflect their official civil status. However, it specified that this designation did not exclude the applicants’ self-identification. The Court first addressed the matter of ‘irreversibility of the transformation of the bodily appearance’. Whilst the French Government argued that this condition of irreversibility in the French case law did not always necessarily entail a surgical intervention or treatment leading to the person’s sterility, the Court nevertheless aligned it with a de facto condition of surgical or hormonal sterilisation.
Secondly, the Court acknowledged the State’s positive obligation to respect the private life of transgender persons under Article 8 ECHR by foreseeing a procedure for legal gender recognition without having to comply to conditions which the person concerned denounces. Indeed, the Court pointed out that Article 8 encompasses a right to personal autonomy, of which the freedom to define one’s sexual identity (‘appartenance sexuelle’) is one of the most essential elements. It then proceeded by verifying whether the State, taking into account its margin of appreciation, struck a fair balance between the general interest and the rights of the applicants. The Court held that the margin of appreciation of the State was restrained. Even though there is no European consensus on the condition of sterility for legal gender recognition, and the matter concerns a person’s official civil status, and delicate moral and ethical questions, an essential aspect of a person’s intimate identity, or even existence, is at stake. The Court also noted the international tendency to abandon the condition of sterility in the context of legal gender recognition, which France nota bene joined in October 2016, and is supported by several European and international human rights actors. The Court held that, by conditioning legal gender recognition on sterilising surgery or treatment, which the persons concerned do not necessarily wish to undergo, the requirement comes down to conditioning the exercise of the right to respect for one’s private life under Article 8 on the renunciation of one’s right to physical integrity, protected by Articles 8 and 3. Even though it acknowledged the importance of the general interests of the unavailability, truthfulness and coherence of the civil status, it found that the State failed to strike a fair balance between those interests and the rights of the applicants, and therefore violated Article 8 ECHR.
Nevertheless, the Court upheld the condition of providing evidence of the existence and persistence of the ‘syndrome of transsexuality’ and the possibility for the state to order the performance of a medical expert research, considering the wide margin of appreciation for the State and the smaller consequences for the persons concerned. Indeed, the Court noted that the positions of European and international human rights actors with regard to the requirement of a diagnosis of transsexuality for legal gender recognition were not as firm as regarding the condition of sterilisation. Even though the Court acknowledged the contribution of these conditions to the societal stigmatisation of transgender persons, it argued that they also guarantee that persons do not erroneously change their legal sex.
With this judgment the Court clearly drew a line with regard to the human rights protection of trans persons. Although it mostly affirmed the already existing case law with regard to non-consensual sterilisation (V.C. v. Slovakia) and the compulsory requirement of sterility in order to have access to medical gender confirmation treatment (Y.Y. v. Turkey), the Court held for the first time that compulsory sterilisation for legal gender recognition violated Article 8 of the Convention. The judgment will therefore have as a direct effect that more than twenty member states of the Council of Europe will be obliged to reform their legislation with regard to legal gender recognition, in order to remove the compulsory condition of sterility. Although the dissenting judge Ranzoni deemed that this finding crossed the boundaries of the ECHR mechanism, the Court’s position significantly increases the protection of human rights of trans persons in Europe. Given its widespread consequences, it is thus commendable to translate the judgment in all official languages of the CoE.
Nevertheless, the judgment can also be criticized on several points. First and foremost, the Court did not end the societal and legal pathologisation of trans persons. Indeed, even though the Court recognised the risk of stigmatisation that lies in the medicalisation of the issues that trans persons face, it upheld the condition of a diagnosis of transsexuality in order to successfully apply for a legal sex change. The Court relied on a broad margin of appreciation for the State, which was supported by the fact that the international materials did not seem to explicitly condemn such requirement. However, this reading clearly contradicts, inter alia, Resolution 2048(2015) of the CoE Parliamentary Assembly, which calls for the abolition of any medical condition and diagnosis for legal gender recognition. It also contradicts the essence of Principle 3 of the leading Yogyakarta Principles, which calls for the full legal respect for and recognition of a person’s self-determination regarding gender identity. A fortiori, the Court even failed to mention the Yogyakarta Principles in the first place. Moreover, by strictly interpreting the condition of the irreversibility of the bodily transformation to the opposite sex as a condition of compulsory sterilization, the Court left the question of the compatibility of other medical conditions which could theoretically fall under the ‘irreversibility of the transformation’, such as compulsory genital reassignment surgery or hormonal treatment, with Article 8 even completely unanswered. From a legal reasoning perspective, the judgment thus certainly falls short.
This observation has to be combined with the fact that the Court did not want to address the different treatment of transsexual persons and the larger group of transgender persons. Indeed, the second and third applicant pointed out that requirements of being diagnosed as ‘transsexual’ and the ‘irreversibility of the transformation of the bodily appearance’ limit the procedure of legal gender recognition to transsexual persons, in violation of Articles 8 jo. 14 ECHR. Although the Court acknowledged in the judgment that not all transgender persons want to undergo medical treatment to align their body with their gender identity (e.g. §126), it ruled that the finding of a violation of Article 8 was sufficient to resolve the case. Moreover, – except for a short mention in §131 -, Article 3 also did not play any role of importance in the Court’s reasoning.
The history of trans rights has been one of gradual evolution. With this judgment, the Court certainly contributed significantly to the legal protection of trans persons in Europe, but also stayed true to this path of gradual development it chose before. Swift improvements of the legal status of non-transsexual transgender persons thus predominantly have to be expected from the actions of the member states.