April 07, 2022
By Pieter Cannoot
On 17 February 2022, the European Court of Human Rights delivered its judgment in the case of Y. v. Poland. The Court unanimously found no violation of Article 8 of the Convention (ECHR), and no violation of Article 14 taken together with Article 8. The case concerned a trans man who had obtained legal gender recognition in Poland, but whose full birth certificate still mentioned the sex assigned to him at birth. Indeed, while the man had successfully changed his name and official sex/gender marker on his identity documents, his original birth certificate had only been annotated. Although the Court recently ruled in favour of trans applicants in several cases (see especially A.P, Garçon, Nicot v. France, S.V. v. Italy, X. v. FYR of Macedonia and X. and Y. v. Romania), this case shows that it is still willing to uphold the State’s interests in sex/gender registration.
The applicant, Y., is a Polish national who lives in Paris. He was assigned female at birth, but identified as a man. In 1992, he obtained legal gender recognition through a court order. The Warsaw District Court ordered to annotate the applicant’s birth certificate to indicate that his registered sex changed from female to male. Y. later married K., with whom he had a daughter in 2001. The child’s French birth certificate indicated the applicant as her father and K. as her mother.
Between 2005 and 2008 Y. unsuccessfully applied to the Polish authorities to have the annotation of his original birth certificate removed. In 2011 he lodged a request to the Warsaw District Court to be issued a new birth certificate. He relied on the legal provisions relating to the issuance of a new birth certificate following a child’s adoption. He was unsuccessful at three levels of jurisdiction, with the Supreme Court holding that it was not possible to issue a new birth certificate following a gender transition, and thus the change of registered sex would have to be indicated as an annotation to the original birth certificate.
Relying on Articles 8 and 14 ECHR, the applicant complained that his birth certificate included reference to the sex/gender assigned to him at birth, and that he was discriminated against in comparison with adopted children, who were issued new birth certificates after their adoption.
The Court first held that applicant did not specifically complain about the lack of a regulatory framework for legal gender recognition in Poland. It considered that the crux of the case was the question whether Article 8 entailed a positive obligation on the State to provide an effective and accessible procedure for gender recognition that allows the person concerned to obtain a birth certificate that does not mention the sex/gender assigned at birth.
Referring to its judgment in Hämäläinen v. Finland (Grand Chamber), the Court held that in implementing their positive obligations, States enjoy a certain margin of appreciation. When the case concerns a particularly important facet of an individual’s existence or identity, that margin will be restricted. The Court observed that the applicant had successfully obtained legal recognition of his gender identity, was issued with new identity documents, was able to lawfully marry and continued to live in society as a man. It pointed out that, whereas the full version of his birth certificate included a marginal annotation of the change of his registered sex, the short extract only indicated his new name and registered gender. While the Court acknowledged that this marginal annotation was demeaning and caused mental suffering, it held that in daily life, the applicant was not required to reveal his gender history. Indeed, given that full birth certificates were not publicly accessible, that only a number of interested persons could obtain a copy of a full birth certificate, and that full certificates were only seldomly used (i.e. in proceedings relation to adoption, application for citizenship and in the context of certain criminal proceedings), it found that the inconveniences caused to the applicant were not sufficiently serious. In any case, the Court found that the applicant did not demonstrate that he had suffered any sufficiently serious negative consequences or difficulties resulting from the fact that the sex assigned at birth was still visible in the form of an annotation on his full birth certificate.
The Court held that it was mindful of the historical nature of the birth record system and that, in view of the public interest, reference to the sex/gender assigned at birth, might, in certain situations, be necessary to prove certain facts predating the change of registered sex, even though this could cause the person concerned to experience some distress. Even so, the Court considered that such a potential risk of adverse consequences was not capable of rendering the Polish legal framework deficient in light of the State’s positive obligation.
The Court thus concluded that the State has struck a fair balance between the different interests at stake.
The applicant’s complaint under Article 14 of the Convention concerned his inability to obtain a new birth certificate without any information about the sex assigned to him at birth. He compared his situation to that of adopted children, who were issued a new birth certificate after full adoption. The Court held that these situations were not sufficiently comparable. There was therefore no violation of Article 14 read together with Article 8 ECHR.
The judgment in Y. v. Poland breaks a streak of almost 8 years in which the Court found a violation of Article 8 ECHR in the context of legal gender recognition. Indeed, ever since its judgment in Christine Goodwin v. United Kingdom (2002), the ECtHR has progressively strengthened the protection of the fundamental rights of trans persons, especially in the context of gender recognition. Through a number of judgments, the Court held that States are bound by the positive obligation to allow a legal change of registered sex (Christine Goodwin v. United Kingdom), that procedures need to be quick, transparent and accessible (S.V. v. Italy (2018), X. v. FYR of Macedonia (2019), Y.T. v. Bulgaria (2020)), and that States may not require compulsory sterility or gender affirming surgery as a condition for gender recognition (A.P. , Garçon, Nicot v. France (2017), X. and Y. v. Romania (2021)). However, the Grand Chamber considered a condition of mandatory divorce not a violation of the ECHR, as long as the marriage is converted into a registered partnership with a similar legal status (Hämäläinen v. Finland (2014)). Moreover, the Court has yet to examine cases concerning legal gender recognition under Article 14 ECHR and still upholds general pathologisation of trans persons (A.P., Garçon, Nicot v. France).
Whereas recent cases especially concerned the availability, accessibility and foreseeability of procedures of legal gender recognition, as well as the conditions that State may require, Y. v. Poland addressed the issue of how an official change of registered sex/gender is performed. As is common in most legal systems around the world, a person’s official sex/gender marker is included on their birth certificate. The determination of a child’s legal sex/gender marker is often based on a superficial check of their external genitalia at birth. While a person’s gender identity is still fully unknown at birth, the official sex/gender marker is also assumed to indicate that person’s gender. In other words, all persons are assumed to be cisgender, until proven otherwise. When a person does not identify in conformity with the sex assigned at birth, Strasbourg case law guarantees access to an administrative or judicial possibility to change that registered sex. In many civil law systems, the original birth certificate is annotated to indicate that change for the future. The person concerned will often receive new identification documents mentioning the newly registered sex/gender, and access to the full birth certificate indicating the former registered sex/gender is limited to certain persons and certain situations. However, the State retains information on a trans person’s gender history.
This stereotyped, cisnormative logic of the official sex/gender registration system was at the centre of Y. v. Poland, but remained completely untouched by the Court. Indeed, while the Court acknowledged that a potential reveal of one’s gender history might be demeaning, cause mental suffering and might lead to ‘inconveniences’ when a copy of a full birth certificate would be required, it easily brushed aside these arguments in light of the State’s interest in maintaining the historical veracity of the civil registers. Although it cannot be disputed that full birth certificates often only play a minor role in the life of a person who successfully obtained gender recognition and new identity documents, the Court’s paternalism is still remarkable: the applicant’s feelings of anguish at the prospect of being ‘outed’ against his wish are not given proper weight (in the judgment they are described as ‘some inconvenience’, ‘some distress’ and as ‘not sufficiently serious’), since he is fully recognised as a man most of the time. At no point in the judgment the Court seems to take into consideration the root cause of the (legal and administrative) problems that trans persons are confronted with. Trans persons would not have to request a change of the sex/gender that was wrongfully assigned to them, if such wrongful sex/gender assignment had never taken place to begin with. While it could not have been expected of the Court to properly assess the practice of sex/gender registration as such in this case, the cisnormative stereotypes in the registration at birth should have played a role in the balancing of interests.
Although the ECtHR has certainly contributed to a gradual deconstruction of cisnormative stereotypes in law, it continues to implicitly frame trans persons as the exception to a cisnormative rule. While the consequences of such minority position must be mitigated (through easily accessible procedures of legal gender recognition that comply with the right to bodily autonomy), they should not be fully eliminated, according to the Court. Indeed, as becomes clear after reading Y. v. Poland, a trans person must accept the mental suffering and the ‘inconveniences’ of being potentially confronted with that minority status in legal and administrative settings such as adoption and criminal proceedings, as long as they are able to avoid them in regular daily life. Moreover, it is for the trans person to show that the inconveniences they suffered have sufficiently serious negative consequences. In other words, there is no trace in the judgment of a recognition that the applicant’s hardship was fully caused by the State.
The Court’s reluctance to deal with the core issue at stake, as well as the burden that is put on the applicant, seem difficult to reconcile with the acknowledgement that the State’s margin of appreciation in cases concerning ‘a particularly important facet of an individual’s existence or identity’ is restricted. Indeed, in the judgment the Court easily accepted the State’s interest in preserving the ‘historical nature’ of the birth record system and the potential ‘necessity to prove certain facts predating the change of registered sex/gender’. While the applicant was expected to demonstrate in detail that he sufficiently suffered from the State’s administrative choices, the Court did not require the State to show that no other measures could have been taken which would have better enabled the retention of an administrative trace after gender recognition without revealing the applicant’s gender history. This should however not be surprising, since in the past the Court has consistently recognised the importance of the accuracy of public civil records, declaring that this importance justifies ‘rigorous procedures’ surrounding any changes to these records in order to ensure their veracity (see A.P., Garçon, Nicot v. France, § 132-142; S.V. v. Italy, § 69; Y.T. v. Bulgaria, § 70, X. and Y. v. Romania, § 158). Moreover, the Court’s restraint might be brought back to the dominant framing of cases relating to legal gender recognition as cases concerning the State’s positive obligations. As former judges Sajó, Lemmens and Keller already argued in their dissenting opinion in Hämäläinen v. Finland as regard to the positive obligation to ensure effective respect for the rights protected by Article 8, “the Court grants States a wider margin of appreciation concerning their positive obligations than their negative ones” (§ 4). The dissenting judges considered that the case should have been addressed as a potential breach of a negative obligation. Similarly, there is no convincing reason why Y. v. Poland did not actually concern the State’s negative obligation not to breach a trans person’s right to respect for private life in their civil records system, implying a narrower margin of appreciation for the State.
In order to demonstrate discrimination, the applicant compared his situation with that of persons who receive a new birth certificate after full adoption. He therefore asked the Court to compare his situation with the only situation in Polish law that leads to the issuance of a new full birth certificate and is totally unrelated to matters of gender identity. Unsurprisingly, the Court quickly set aside the applicant’s claim under Article 14 ECHR. Since the applicant felt discriminated on grounds of being a trans person, he should have asked the Court to compare the situation of a trans person, who after obtaining gender recognition still runs the risk of being challenged in their gender identity, and a cisgender person whose gender identity has been correctly registered since birth. The Court has already included ‘gender identity’ as a prohibited ground of discrimination under Article 14 (see Identoba and Others v. Georgia and A.M. and Others v. Russia). In the case of A.M. and Others v. Russia, which concerned the restriction of a trans person’s parental rights based on transphobic motives, it held for the first time that a trans individual was discriminated in comparison with a cisgender person because of the domestic authorities’ persistent reliance on stereotypes concerning gender identity. In other words, the Court has already shown that it can pierce through a State’s cisnormative logic. However, given the Court’s reserved attitude in relation to the right to respect for private life, it would have been surprising to see a violation of Article 14 in the absence of a violation of Article 8.
In the – almost – two decades since Christine Goodwin v. United Kingdom, the Strasbourg Court has played an important role in advancing the recognition and protection of the fundamental rights of trans persons. The importance of the Court’s case law cannot be disputed, especially in times where trans persons are increasingly confronted with hostilities in several Council of Europe Member States. However, the Court’s unwillingness to address the ways trans persons are structurally confronted with cisnormativity in law remains disappointing. While it cannot be expected of a supranational court to take the lead in a fundamental reform of the sex/gender registration system, an effective anti-stereotyping approach at least requires an engagement to critically unpack the seemingly self-evidence of the State’s civil records system and the importance of sex/gender in that regard. In any case, the Court should avoid paternalising rhetoric towards trans persons who have played no role in causing the legal and administrative problems that they are confronted with.
Looking to the future, it remains to be seen how the Court will tackle cases that fundamentally challenge sex/registration. So far, most cases concerned the conditions for obtaining legal gender recognition and did not challenge the existence or importance of sex/gender registration as such. As much of the trans activism and academic scholarship is now calling for the abolition of sex/gender registration, or at least a fundamental deconstruction of its binary and cisnormative logic, it appears only a matter of time before the ECtHR will be asked to address these issues.