December 16, 2020
By Mattias Decoster (PhD researcher at Ghent University and University of Antwerp) and Sarah Schoentjes (PhD researcher at Ghent University).
The Human Rights Centre of Ghent University, in collaboration with the Equality Law Clinic from the Université Libre de Bruxelles, submitted a third party intervention before the European Court of Human Rights in the case of Y v. France. With this case, the Court is invited to pronounce itself on the issue of non-binary sex/gender markers in official documents. It was brought by an intersex applicant who identifies as gender non-binary. The stakes are high not only for persons with certain variations in sex characteristics (intersex persons), but also for all those who identify outside of the gender binary and want to be legally recognised as such. In our submission, we argue that Contracting Parties which refuse to register individuals who seek a non-binary sex/gender marker as such violate their positive and negative obligations under Article 8 of the European Convention on Human Rights, taken alone or in conjunction with Article 14. The facts and our arguments are further outlined below.
The applicant was born with a variation in sex characteristics (i.e. their sex could not be determined as either male or female at birth). Because French law requires infants to be assigned a sex at birth, the applicant was declared to be male, but they have always identified as gender non-binary (i.e. they do not consider themselves to be a man or a woman). On 20 August 2015, the court of first instance granted their request to change their sex/gender registration from ‘male’ to ‘neutral’. However, the Court of Appeals overturned this ruling in its judgement of 22 March 2016, and the Court of Cassation upheld the Court of Appeals’ decision. It reasoned that the refusal to allow the applicant to register as ‘neutre’ was justified by a legitimate aim. According to the Court of Cassation, binary sex/gender registration is necessary for the legal and social organisation of French society. It also ruled that allowing non-binary registration would have too much of a far-reaching impact on French law. The Court of Cassation further stated that mandatory binary sex/gender registration was not disproportionate to ensure the legitimate aim, since the applicant seemed, to third parties, to physically and socially act as a man. In the French court’s (rather puzzling) reasoning, this meant that being legally registered as a man did not disproportionately impact the applicant’s private life.
Third Party Intervention Arguments:
Our third party intervention consisted of four parts: an overview of the legal and societal background surrounding the recognition of sex and gender identity (1), followed by an analysis of the State’s positive (2) and negative obligations (3) under Article 8, and lastly, an examination of the discrimination aspect of the case under Article 14 in conjunction with Article 8 (4).
Sex/gender non-conforming people (by which we mean anyone who cannot identify within the binary division of sex and/or gender, and more specifically, people with variations in sex characteristics as well as gender non-binary individuals) have been increasingly visible in society and have made claims for ECHR protection before the European Court of Human Rights (see, for example, Goodwin v. UK and A.P., Garçon et Nicot v. France, which expanded the right to gender recognition for trans* persons, as further explained in section 2 on positive obligations). In the present case, the Court is invited, for the very first time, to pronounce itself on the right of certain sex/gender non-conforming people to have their specific non-binary gender identity legally recognised by the State.
While in this case, the applicant has a variation in sex characteristics and considers themselves gender non-binary, the outcome of this ruling has the potential to also affect people with variations in sex characteristics who identify within the gender binary (that is, as a man or a woman) and gender non-binary people who do not have a variation in sex characteristics. Y v. France has thus (much) wider implications than may be apparent at first. While the Court could open the door for better legal protection for sex/gender non-conforming people, its ruling may (re)produce harms or forms of vulnerabilities.
On the one hand, a ruling that would make a non-binary sex/gender marker available only for intersex people would be under-inclusive as it leaves gender non-binary people with no variation in sex characteristics in the cold. At the same time, such a ruling would also be over-inclusive since it ignores the fact that many people with variations in sex characteristics in fact identify as a man or a woman and thus would want to be legally classified as such. On the other hand, a ruling that makes a non-binary sex/gender marker mandatory for intersex people (and people who identify as non-binary) would be problematic since it would risk exacerbating the already existing stigma by emphasising these individuals’ otherness. Due to this stigma, mandatory non-binary registration, like mandatory binary registration, has been proven to lead to non-consensual medical treatments on intersex infants and children. Cisnormative legal frameworks thereby risk furthering the trend of pathologising sex/gender non-conforming experiences.
Our TPI argued that the Court should therefore ideally rule that the Convention mandates Contracting Parties to make one or more non-binary sex/gender marker(s) available and optional for all those who seek it on the basis of self-determination or to abolish mandatory sex/gender registration altogether. We showed that such a ruling would find support in an emerging, but clear international legal trend.
Various countries within the Council of Europe have moved towards relying on self-determination in matters of sex/gender registration. These include Denmark (2014), Ireland (2015), Malta (2015), France (2016), Norway (2016), Greece (2017), Belgium (2017), Portugal (2018), Luxembourg (2018) and Iceland (2019). Moreover, some Contracting Parties have introduced legal reforms in order to recognise a non-binary sex/gender marker. These States are Austria (option ‘divers’ available since 2019), Germany (option ‘divers’ available since 2018), Iceland (option ‘X’ available since 2020), Malta (option ‘X’ available since 2018) and the Netherlands (option ‘X’ possible through a judicial procedure since 2018). Consultations are underway in Belgium with a view to implementing the Belgian Constitutional Court’s June 2019 ruling, according to which the absence of non-binary gender recognition in law violates the constitutional right to equality and non-discrimination. These States are supported in their reforms by Principles 3 and 31 of the Yogyakarta Principles +10 on the application of international human rights law in relation to sexual orientation and gender identity, as well as the Council of Europe Parliamentary Assembly (PACE) Resolution 1728 (2010), PACE Resolution 2048 (2015), and PACE Resolution 2191 (2017).
2. Positive obligation
With our first argument, we invited the Court to extend the positive obligation concerning legal gender recognition under Article 8 to persons with a non-binary gender identity, as well as to restrict the State’s margin of appreciation in gender recognition cases. In Goodwin v. UK, the Court established a positive obligation to implement a procedure for legal gender recognition – though it left the appropriate means to do so to the State. In A.P., Garçon et Nicot v. France, it recognised that gender is ‘an essential aspect of intimate identity of all persons[emphasis added], if not of their existence’ and that all persons should be free to define their own gender identity.
Therefore, the current positive obligation on the part of the State to provide for a gender recognition procedure is under-inclusive, since it does not explicitly include a positive obligation to legally recognise non-binary genders. Consequently, persons with a non-binary gender identity find themselves faced with ‘an anomalous position in which [they] may experience feelings of vulnerability, humiliation and anxiety’ (mutatis mutandis Goodwin, para. 77), which leads to a gap in the protection of their human rights. We argued that the State does not have any genuine interest in the preservation of exclusively binary sex/gender registration. In the face of a non-binary reality, binary public records are in fact less accurate than public records which recognise the diversity of sex/gender.
Concerning the margin of appreciation in gender recognition cases, we pointed to the Court’s existing case law, which no longer leaves any doubt that gender identity is an essential aspect of self-determination under Article 8. In S.V. v. Italy, the Court emphasised ‘the particular importance of matters relating to a most intimate part of an individual’s life, namely the right to gender identity, a sphere in which the Contracting States have a narrow margin of appreciation’. We argued that this reasoning should apply to all persons, including sex/gender non-conforming persons. Therefore, States should have a narrow margin of appreciation concerning gender recognition procedures for persons with a non-binary gender identity.
We supported this argument by pointing to the international trend towards self-determination in gender recognition procedures. The Court finds legal and societal evolutions to be of high importance when assessing the margin of appreciation in cases concerning gender recognition. Consequently, we pointed to the Yogyakarta Principles +10, which recommend the implementation of non-binary sex/gender registration, as well as to State practice within the Council of Europe, which we described above. This evolution should, in keeping with the Court’s own case law, be taken into account when assessing the State’s margin of appreciation.
3. Negative obligation
Aside from a positive obligation analysis, we submitted that mandatory binary sex/gender registration also violates Contracting Parties’ negative obligations under Article 8. In this section of the third party intervention, we started off by explaining how all forms of sex/gender registration as such interfere with an individual’s right to freely determine their gender identity and called upon the Court to find a practice of specifically mandatory binary sex/gender registration a violation of Article 8.
On the one hand, sex/gender registration directly interferes with one’s right to autonomy concerning matters of gender identity because it forces individuals to determine their gender (which some prefer to avoid), with a certain level of permanency (which is problematic for genderfluid people), and in line with a pregiven (binary or non-binary) system of categories, with which many individuals cannot relate. On the other hand, sex/gender registration also indirectly interferes with the right to freely determine one’s gender identity because it validates the belief motivating violence against those who transgress gender norms. Sex/gender non-conforming people are often attacked because their aggressors believe that sex/gender is a natural, objective and recordable given that it can be determined upon inspection of the body at birth. Sex/gender registration relies on that same belief and hence validates sex/gender-based violence. Because no one wants to be subjected to such harm, sex/gender registration induces individuals to determine their gender in line with conventional (binary) gender norms, indirectly interfering with individuals’ freedom to determine their gender identity and expression.
While sex/gender registration interferes with individuals’ autonomy regarding gender identity and expression, we submitted that mandatory binary sex/gender registration, as a specific form of sex/gender registration, is in breach of the Convention. Aside from the existence of various instruments of international law which call for the abolition of mandatory binary sex/gender registration, the legitimate aims behind such practice are less obvious than they may seem at first. Very often, it merely constitutes an old habit without an easily identifiable purpose.
One could oppose loosening mandatory binary sex/gender registration in an attempt to secure the accuracy, consistency and reliability of an individual’s civil status, which is argued to guarantee legal certainty. However, it is hard to defend the legitimacy of a measure that ignores and erases the existence of sex/gender non-conforming people. Even if we consider mandatory binary sex/gender registration a legitimate interference with the right to self-determination, it is disproportionate because it fails to achieve that aim. Indeed, mandatory binary sex/gender registration is literally inaccurate when it registers sex/gender non-conforming people as either ‘male’ or ‘female’.
Granted, official sex/gender data may help to operationalise certain public health policies and programmes striving for gender equality through, for example, affirmative action. However, mandatory binary sex/gender registration again fails the proportionality test. Indeed, such programmes could rely on self-identified instead of state-certified sex/gender or could be operationalised on the basis of other criteria than official sex/gender, which are often more relevant. Scholars have come up with a whole range of policies that advance public health or gender equality without the need for official binary sex/gender. Mandatory binary sex/gender registration is therefore neither the least restrictive, nor the most suited measure to achieve aims of public health or gender equality.
Lastly, our third party intervention argued that the refusal to extend gender recognition to sex/gender non-conforming people constitutes discrimination under Article 14 in conjunction with Article 8. In X v. the former Yugoslav Republic of Macedonia, the Court recognised that gender is a core aspect of all persons’ personal identity under Article 8. However, unlike cis persons, persons who do not identify with the sex/gender they were assigned at birth cannot have this core aspect of their identity recognised by the State. This differential treatment is often justified by the need to ensure the accuracy of public records. We argued that such a need is not a legitimate aim. The existence of people with variations in sex characteristics and people with a non-binary gender identity shows that the reality of sex and gender is not binary. Consequently, insisting on binary sex/gender registration in public records actually diminishes the accuracy of those records.
Even if binary sex/gender registration was beneficial to the accuracy of public records, there is still the matter of proportionality. We argued that, given the stigma, prejudice and abuse suffered by sex/gender non-conforming persons, the Court should consider them a ‘vulnerable group’. Consequently, the principle of ‘very weighty reasons’ should be applied to this proportionality test. In the Court’s case law, public interests are not considered weighty enough to justify the limiting of the rights of members of a vulnerable group. We concluded that the accuracy of public records is not proportionally weighty enough to justify denying sex/gender non-conforming people the legal recognition of such a core aspect of their personal identity under Article 8.
 For the Human Rights Centre, the team consisted of Prof. Dr. Eva Brems, Dr. Pieter Cannoot, Mattias Decoster, Sarah Schoentjes and Anne-Katrin Speck.
 For the Equality Law Clinic, the team consisted of Prof. Emmanuelle Bribosia, Charly Derave and Prof. Isabelle Rorive.
 The documents published by the Court refer to the applicant’s “Identité de genre intersexuée”.
 The applicants’ preferred pronouns in English are not clear from the Court documents. We chose to use “they/them” in the interest of inclusivity.
 See footnote 3.