April 02, 2019
This post was written by Mariam Gaiparashvili and Sarah Schoentjes, Master students at the Human Rights Legal Clinic, Ghent University
In X v. FYROM, the ECtHR confirmed the Member States’ positive obligation under Article 8 ECHR to establish a clear legal procedure for gender recognition. Disappointingly, however, it refused to examine the applicant’s claim that mandatory sex reassignment surgery as a requirement for gender recognition also violated Article 8. From the dissenting opinion of Judges Pejchal and Wojtyczek, it is clear that this application crystallised core disagreements within the Court on its interpretation methods and its role toward the Member States. Unfortunately, trans* persons bear the brunt of this conflict, as it seems to have led the Court to be very circumspect in this case, denying trans* persons much-needed clarity and protection.
In X v. FYROM, the applicant is a trans* man who protests against the lack of a clear legal framework on gender recognition in his home country and the judicial obligation forced onto him to undergo genital surgery before he can qualify for gender recognition. Since medical transition is inaccessible in FYROM, he turned to a clinic in Belgrade, where he was “diagnosed with transsexuality”, started hormonal treatment, and eventually underwent a double mastectomy. He was issued a new ID with a male name, but the sex/gender marker and numerical personal code still identified the applicant as female. The national courts, to which he turned in the absence of a legal procedure, refused to change this because he had not had genital surgery.
The applicant argued that the procedure for gender recognition was not regulated by law. Furthermore, the authorities had arbitrarily imposed on him a surgery requirement. According to the applicant, both were violations of Article 8 of the ECHR. The Government, on the other hand, submitted that gender recognition contrary to decisive biological characteristics would cause many practical problems. The Government also stated that the conditions for legal gender recognition varied among the Contracting States and that the margin of appreciation to strike a fair balance between the interests of an individual and the general interest should therefore be wide.
The Court concluded that the applicant’s main concern was the alleged lack of regulatory framework for legal gender recognition. Therefore, the primary question to be answered was whether the respondent State complied with its related positive obligation. The Court concluded that the current legal framework did not provide “quick, transparent and accessible procedures” for gender recognition. Those legislative gaps “left the applicant in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his identity” (§70). Therefore, the Court concluded that there had been a violation of Article 8 of the Convention on account of the lack of a regulatory framework ensuring the right to respect for the applicant’s private life (§71). The Court observed that FYROM had taken no definitive position on whether sex reassignment surgery was mandatory for gender recognition, but, having already found a violation of Article 8, it refused to consider the applicant’s claim about this requirement.
Analysis of the judgment
Recent history has seen a booming increase in the legal recognition and protection of trans* persons. The ECtHR’s first major contribution to this evolution was the case of Christine Goodwin v. UK. In this 2002 judgment, the Court found that lack of gender recognition for a post-operative transsexual person places the person into a situation of “vulnerability, anxiety and humiliation” (§77), that the personal identity of transsexual persons falls under Article 8 ECHR (§90), and that “society may be reasonably expected to tolerate a certain inconvenience to enable [them] to live in dignity and worth” (§91). The Court ruled that the existence of gender recognition procedures no longer fell within the State’s margin of appreciation, and that denying a transsexual person gender recognition amounted to a violation of Article 8 ECHR.
Since then, legal gender recognition has been made possible in 41 Member States of the Council of Europe. In most of these countries, however, gender recognition is still dependant on a multitude of requirements. The Court’s endorsement of the existence of these requirements can already be found in Goodwin: gender recognition no longer falls within the State’s margin of appreciation, “save as regards the appropriate means of achieving recognition” (§93). In all but seven Council of Europe Member States, gender recognition is still subject to requirements as varied and invasive as forced sterilisation, mandatory diagnoses, mandatory medical procedures and compulsory divorces. These requirements have been decried by other organs of the Council of Europe – the Commissioner for Human Rights, the Council of Ministers, and the Parliamentary Assembly – that encourage the Member States to implement administrative procedures for legal gender recognition based on self-determination. Nonetheless, until very recently, the ECtHR did not examine the compatibility of these requirements with the ECHR.
The breakthrough happened in April 2017, with the case of A.P., Garçon et Nicot v. France. In this case, the applicants questioned the legality of two requirements for gender recognition: an “irreversible change in appearance,” interpreted as compulsory sterilisation (§120), and a mandatory diagnosis of gender identity disorder. Regarding the latter requirement, the Court found that there was no violation (§144). Regarding sterilisation, however, the Court ruled that this requirement violated the applicants’ personal autonomy and physical integrity under Article 8 ECHR (§135). Since 2017, the number of Members States prohibiting sterilisation as a requirement for gender recognition has risen from 21 to 27.
Since mandatory sex reassignment surgery interferes with physical integrity in a comparable way as forced sterilisation, a logical next step in this evolution would have been to establish that such a requirement also violates Article 8 ECHR. Such a requirement effectively bans all trans* persons who cannot or do not want to undergo sex reassignment surgery from gender recognition. Unfortunately, X v. FYROM confirms the ECtHR’s reticence to rule on this subject.
X v. FYROM is a clear follow-up to both Goodwin and A.P., Garçon et Nicot. The applicant’s complaint is two-fold. Firstly, FYROM has no clear legislative framework regarding gender recognition. Secondly, during the judicial procedure the applicant consequently stated that the domestic courts repeatedly imposed upon him the requirement of mandatory sex reassignment surgery. Being a non-transsexual transgender person, the applicant had no desire to undergo such a procedure.
In line with its reasoning in Goodwin, the ECtHR did find that the absence of a clear legal framework violated Article 8 ECtHR. Having found this violation, however, it did not deem necessary to examine the possibility of a violation of the same Article regarding the requirement of mandatory sex reassignment surgery. Refusing to examine this requirement despite its omnipresence in the domestic system seems a lot like wilful avoidance on the part of the ECtHR.
Unlike in A.P., Garçon et Nicot, the ECtHR genders the applicant correctly, despite the fact that he has not yet obtained gender recognition and has no desire to undergo sex reassignment surgery. By gendering the applicant correctly, the Court shows respect for the gender identity of transgender persons. This respect is even more obvious in the ECtHR’s explicit statement that “the right to respect for private life under Article 8 of the Convention extends to gender identity, as a component of personal identity […] for all individuals, including transgender people” (§38). This is undoubtedly a positive development.
Another positive aspect of the present case is that the ECtHR cites progressive and even activist documents by the Parliamentary Assembly, the Council of Ministers, the OHCHR and even Transgender Europe in its analysis (§31-§35). It is certainly heartening and deeply encouraging to know that the Court pays attention to such documents and takes them into account in its reasoning. However, citing activist documents might contribute to certain judges’ discontent about “judicial activism”, as expanded upon in the following part.
Nevertheless, this case still confirms the “classical” narrative about trans* persons: the applicant knew he was a man “from an early age” (§7), chose to receive hormone therapy (§7), and had a double mastectomy (§14). These aspects of a medical transition have ensured that the applicant appears “stereotypically male”. This implicitly ties the right to gender recognition to physical appearance, which has strongly informed the Court’s approach in cases of legal gender recognition in the past. It would be interesting to see the ECtHR’s reasoning if an applicant argued a violation of Article 8 having only recently discovered their gender identity and/or not having medically transitioned at all. An opportunity for strategic litigation, perhaps?
Analysis of the dissenting opinion
The dissenting opinion in this case is particularly interesting as it showcases the concealed disagreement within the Court on its interpretation methods. It illustrates how underlining tensions contributed to the majority’s political concession and prevented direct challenging of mandatory sex reassignment surgery.
In their dissenting opinion, Judges Pejchal and Wojtyczek argued that Article 8 is not applicable to the specific claims raised by the applicant and that the application should have been declared manifestly ill-founded. They conclude from Goodwin that States are required only to recognise the “change of gender undergone by post-operative transsexuals” (§7); according to them, gender recognition for trans* persons who have not undergone sex reassignment surgery falls within the State’s margin of appreciation due to the lack of consensus.
The judges agree that a person’s gender identity belongs to the personal sphere as protected by Article 8, but they argue that the State’s positive obligations under Article 8 do not extend to trans* persons who have not undergone genital surgery (§7). This regrettable interpretation shows how the Court’s reluctance to directly address pathologising conditions for legal gender recognition could actually aggravate the vulnerability of trans* persons in certain parts of Europe, especially when they do not (want to) undergo a full physical transition.
In the dissenting opinion, A.P., Garçon and Nicot v. France was criticised because it referred to a “trend” that “has been emerging” in Europe and argues that such references are “typical signs of judicial activism” (§8). References to “emerging trends”, however, have been part of the Court’s jurisprudence on trans* rights since the very beginning: in Rees v. United Kingdom, the Court held that
“The need for appropriate legal measures should therefore be kept under review having regard particularly to scientific and social developments” (§47). The Court has also repeatedly established that “the aim of the Convention is to guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that the Convention is “a living instrument that must be interpreted according to present-day conditions.”
The dissenters’ main argument is that, using Goodwin as a precedent, States only have positive obligations regarding gender recognition towards post-operative transsexual persons, and that there is no consensus among the Member States to extend that obligation to other trans* persons. They ignore, however, that the positive obligation found in Goodwin was, itself, founded on a “growing international trend”. The logical conclusion to draw from the Court’s reasoning in Goodwin would therefore be to grant more importance to the trend towards full depathologisation of trans* persons among human rights actors and States, than to a conclusive consensus among the Member States.
The majority’s reference to this international trend and its established importance for the Court’s interpretation methods cannot simply be dismissed as anti-democratic “judicial activism”. In doing so, this opinion denounces what many consider to be the Court’s essential role – being the guardian of human rights within a democratic system that is not always fair to minorities. Such statements are a signal of the fundamental disagreements about the role of the Court arising among its judges.
The dissenting opinion sheds some light on how far debates and tension reach in cases on similar issues. The dissenters are aware of activists’ goal and of their use of strategic litigation, and try to prevent legal gender recognition based on self-determination by arguing in favour of a wide margin of appreciation. It is not improbable that their resistance caused the majority to compromise and not go into detail on the requirements for gender recognition. Unfortunately for the persons concerned, such concerns may stop the Court from taking more progressive and humanistic decisions in the near future.
The dissenting judges disagree with the majority about the “lack of regulatory frameworks”. They note that throughout the proceedings, the domestic bodies consistently ruled that proof of sex reassignment surgery was required to obtain sex-marker alteration. The dissenting judges argue that this was a clear regulatory framework, if not a legislative one.
It is undeniable that domestic practice was extremely consistent in its requirement of genital surgery. The dissenters argue that this should have made the application inadmissible; we think it should have led to an examination of this requirement. The majority, however, remained consistent in its refusal to rule decisively on the matter of mandatory sex reassignment surgery. It seems probable that the dissenting judges’ hostility to evolutive interpretation in trans* persons’ favour was a factor in the majority’s reluctance to examine this possible violation. It is disappointing that such an internal conflict leads the Court to hide behind the procedural aspect of the case without touching upon the deeper problem. This was an important opportunity for the Court to clarify the standards for the protection of the rights of trans* persons, a group that continues to suffer institutionalized discrimination and stigmatization. Unfortunately, due to disagreements within the Court, it did not make use of this opportunity.
While X v. FYROM certainly contains positive elements, the ECtHR is very circumspect, choosing to avoid possible contention rather than shedding some much-needed light on issues that have left trans* persons in the dark for too long. It is, however, clear from the dissenting opinion that certain judges would not support such a change. Could addressing only one violation in a way that does not require the ECtHR to significantly expand its case law or take a clear position in this societal debate be a compromise between factions within the Court?
To obtain clarity on the matter, it might be necessary for lawyers and activists to turn to strategic litigation. The Court would not be able to be quite so avoidant if faced, for instance, with an applicant from a country with a very clear regulatory framework and who questioned a well-defined requirement, such as mandatory sex reassignment surgery. The lack of ambiguity in such an application would make it more difficult to effectively ignore part of the applicant’s complaint.
In the meantime, we await the rulings in two pending cases before the ECtHR, both of which deal with mandatory sex reassignment surgery as a requirement for gender recognition: R.L. and P.O. v. Russia and A.D and A.K. v. Georgia. Hopefully, the ECtHR’s judgments in those cases will provide the answers that X v. FYROM withheld from us.