By Pieter Cannoot, PhD Researcher at the Human Rights Centre of Ghent University
On 11 October 2018, the European Court of Human Rights found a violation of Article 8 ECHR in a case involving a transsexual woman called S.V. The application concerned the Italian authorities’ refusal to authorise S.V. officially changing her first name on the grounds that no judicial ruling had confirmed the successful completion of sex reassignment therapy, even though she had been socially and physically transitioning for several years. According to the Court, this waiting period had resulted in feelings of vulnerability, humiliation and anxiety, which amounted to a disproportionate interference with S.V.’s right to respect for private life.
Facts of the case
S.V. was assigned the male sex at birth, yet had always felt female and had adopted a female gender expression in social interactions. In 1999, she started her physical transition by way of hormonal therapy. On the basis of Italian law, she needed to acquire judicial authorization to have access to sex reassignment surgery. On 10 May 2001, the Rome district court provided the authorization. Awaiting the surgical treatment, which would only take place in 2003, S.V. also applied for an official change of the first name given to her at birth. However, since Italian law connected the change of first name of transsexual persons to the completion of sex reassignment therapy, her request was denied. Eventually, a change of name was granted in October 2003, 2.5 years after the initial request and after sex reassignment was finalized.
Relying on Article 8 of the Convention, the applicant alleged that the authorities’ refusal to officially change her first name violated her right to gender identity, especially since she was authorized to undergo sex reassignment therapy. The Court first repeated its consistent position that elements such as gender identity, names, sexual orientation and sexual life fall within the personal sphere protected by Article 8. Next, it reiterated that the freedom to define one’s gender identity is one of the most essential elements of the right to personal autonomy.
According to the Court, competing interests were at stake. Although national authorities enjoy a wide margin of appreciation with regard to the conditions for the official change of first name, only a narrow margin is applicable in cases that touch on sexual identity, which the Court considers one of the most intimate aspects of private life. The main question was whether the Italian authorities had struck a fair balance between the general interest and the private interest of the applicant to have her first name correspond to her gender identity. Regrettably, the exact scope of the margin of appreciation connected to this balance was not clearly established.
The Court pointed out that the preservation of the non-disposability, truthfulness and coherence of the civil status, as well as the requirement of legal certainty justify rigorous procedures that serve to verify the “profound” motivations for a change of legal identity. Nevertheless, the Italian authorities failed to take into account the applicant’s concrete circumstances. Indeed, they overlooked the fact that S.V. had been medically transitioning for years and that her social identity and physical appearance had been feminine for a long time. In this regard, the Court held that no reasons of general interest were able to justify the period of 2.5 years in which the applicant was not able to have her official documents aligned with her social identity; leading to feelings of vulnerability, humiliation and anxiety. Moreover, such practice did not correspond to Recommendation (2010)5 by the Committee of Ministers, which called for a rapid, transparent and accessible procedure for the change of first name of transgender persons. Lastly, the Court pointed out that since 2011, Italian law no longer requires a second judicial decision to confirm the successful completion of sex reassignment for the official recognition of the gender identity and first name of transgender persons. Indeed, the amendment of a person’s civil status can now be directly ordered by the judge in the decision authorizing sex reassignment surgery.
The judgment in S.V. v. Italy is the latest addition to the ECtHR’s growing body of case law concerning the protection of the private life and self-determined gender identity of transgender persons. As the Court pointed out in paragraphs 56 and 57, the case concerned a legal question which it had not addressed before. Indeed, previous judgments dealt only with the legal recognition of post-operative transsexual persons, the conditions to have access to sex reassignment surgery, or the legal recognition of transgender persons who did not (want to) undergo sex reassignment therapy. In S.V. v. Italy, the Court for the first time found a violation of Article 8 ECHR because of the length of the procedure for the amendment of the civil status of transgender persons. Importantly, according to the Court, States can no longer bluntly refuse to legally recognize the social reality of transsexual persons just because their medical transition is not fully completed. Considering that many States still require medical treatment as a condition for the change of first name or the legal recognition of the gender identity of transgender persons, and that these medical procedures are often spread over several years, this ruling certainly strengthens the legal status of a significant group of transgender persons across the Council of Europe.
Although the case could have provided an opportunity for the Court to assess the condition of compulsory sex reassignment for the amendment of a transgender persons, it chose to narrowly interpret the legal question. At various places in the judgment, the Court made it clear that the case’s main focus was the length of the procedure for a change of name and not the legal pathologisation of transgender persons. Moreover, in a somewhat dubious way, it considered that, since the applicant was a transsexual woman who personally did not object to undergoing full sex reassignment therapy as part of her social and physical transition, the right to physical integrity of transgender persons did not arise as a legal issue. In other words, the judgment in S.V. v. Italy did not provide an answer to the questions left by A.P., Garçon and Nicot v. France concerning the scope of the positive obligation regarding legal gender recognition under Article 8 ECHR. In any case, by affirming that the non-disposability, truthfulness and coherence of the civil status, as well as the requirement of legal certainty justify rigorous procedures that serve to verify the “profound” motivations for a change of legal identity, the Court could be rather reluctant to consider all medical requirements for amending the civil status of transgender persons a violation of Article 8 ECHR in the near future. Non-transsexual transgender persons thus remain generally excluded from the ECHR’s protective scope, which is increasingly at odds with various (soft law) instruments of international human rights law, such as the resolutions of the Council of Europe Parliamentary Assembly and the Yogyakarta Principles +10.
Indeed, it appears that the Court is still very much focussed on the importance of physical appearance and the process of the medical transition as arguments for granting legal protection to transgender persons. As becomes clear from paragraph 70, it was precisely the applicant’s gradual sex reassignment and continuous change in physical appearance in the light of her female gender identity which the Court considered to be crucial concrete circumstances. By forcing a transsexual person, who is medically transitioning in order to bring harmony between body and gender identity, to remain legally and administratively known as a person of the biological sex and gender she personally and socially rejects, the State caused feelings of vulnerability, anxiety and humiliation. In this regard, the judgment strongly reflects the reasoning in Christine Goodwin v. United Kingdom, in which the Court held in paragraph 90 that “the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable”. In other words, the legal recognition of the applicant’s situation is related to her physical appearance and sex characteristics, and not based on the right to gender self-determination.
Although Contracting States may still require a condition of compulsory sex reassignment for the amendment of the civil status of transgender persons in the light of their gender identity, they are no longer allowed to leave them in legal limbo for a long time. At the very least, it appears that States have lost their appreciation to refuse the amendment of civil status to those transsexual persons who have been in social and medical transition for several years. Nevertheless, the question of which concrete circumstances, in the lives of transsexual persons, are all covered by the Court’s ruling remains unclear. Should the transition have been going on for several years or is it sufficient that the person concerned has started with medical treatment? Moreover, despite the importance of this case for the gradual development for trans rights across Europe, it remains to be seen if or when the Court will realize a true paradigm shift and end the legal pathologisation of transgender persons.
 On the basis of the non-disposability of civil status, citizens have to abide by government procedures to change fundamental aspects of their legal identity, such as their name, sex marker and marital status.