February 19, 2018
By Pieter Cannoot, PhD researcher, Human Rights Centre (Ghent University)
The Human Rights Centre of Ghent University has submitted a third party intervention in the case of R.L. and P.O. v. Russia. The case concerns the refusal by the Russian authorities to legally recognise the gender identity of the applicants, who are two transmen. According to the authorities, both applicants did not comply with the condition of sex reassignment surgery. The applicants complain that the requirement to undergo various medical procedures for legal gender recognition violates Article 8 of the Convention. Moreover, R.L. also complains under Article 14 jo. Article 8 of the Convention that the State failed to protect him from discrimination and transphobia by refusing to provide him with identification papers reflecting is male gender identity. The full text of the third party intervention can be found here; the main arguments are summarized hereunder.
First of all, the Court is invited to improve and clarify the terminology it uses in cases concerning (the legal recognition of) gender identity. The concepts ‘trans’ and ‘trans*’ are umbrella terms for all gender nonconforming persons, i.e. all persons whose gender identity does not (always) (completely) match their assigned sex or the gender identity that society attaches to it. The umbrella term presupposes a spectrum of persons who (sometimes or always) live, or desire to live, in the role of a gender which is not the one designated to that person at birth. While all transsexual persons are trans*, not all trans* persons are transsexual. Indeed, transgender persons – like the applicants in the case – live or desire to live performing a gender role that is not allegedly correlative to the sex assigned to them at birth, yet do not wish to undergo sex reassignment treatment in order to create congruence between their gender identity and sex characteristics. The recognition of this conceptual difference between transgender and transsexual persons is of paramount importance for the protection of the human rights of the former group.
Secondly, the Court is invited to extend the positive obligation concerning legal gender recognition under Article 8 ECHR, in order to include transgender persons (who do not wish to undergo sex reassignment treatment) and transsexual persons who are not able to undergo sex reassignment treatment. While the Court found in A.P., Garçon, Nicot v. France (2017), that a condition of sterility for legal gender recognition violates Article 8 ECHR, it has not yet found a violation in the compulsory diagnosis of transsexuality/gender dysphoria and/or compulsory sex reassignment treatment. We argue that such extension of the positive obligation is in line with a clearly growing European and global trend towards the full depathologisation of trans* persons in law and society. Moreover, considering the Court’s existing case law, the aforementioned international trend and the fact that trans* persons form a particularly vulnerable group in society, we argue that the State only has a narrow margin of appreciation in cases relating to gender identity.
Finally, we submit that there is also a need to separately examine whether there has been a violation of the prohibition of discrimination in Article 14 ECHR, taken together with Article 8 ECHR. We argue that medical requirements in the context of legal gender recognition discriminate not only trans* persons in comparison with cisgender persons ((i.e. persons whose gender identity is in congruence with their assigned sex), but also transgender persons in comparison with transsexual persons. In this regard, the Court is invited to note the use of transphobic and therefore harmful, negative stereotypes about gender nonconformity as a justification for these medical requirements, which also raises issues concerning the Contracting States’ positive obligations under Article 14 ECHR. Since we argue that trans* persons form a particularly vulnerable group in society, their rights may only be restricted on the basis of “very weighty reasons”. Since trans* persons and transgender persons are discriminated on the basis of pervasive transphobic stereotypes in law and society, we argue that no “very weighty reasons” can be proven by the State.
 In particular Eva Brems, Pieter Cannoot, Laurens Lavrysen and Claire Poppelwell-Scevak