February 14, 2023
By Charly Derave and Hania Ouhnaoui
On 19 May 2022, the European Court of Human Rights communicated its admissibility decision in the case of M. v. France, which deals with “normalising” medical treatments of intersex persons (i.e. those who are born with sex characteristics that do not fit the typical definition of the female and male sex). We make comments on this decision as a follow-up to a blogpost published here a year and a half ago which elaborated on the third-party intervention the Equality Law Clinic (ULB) had submitted together with the Human Rights Centre (UGhent).
Facts of the case and the ECtHR’s decision
The applicant, M., is born in 1977. They claim that between 1978 and 1993 they underwent five surgical operations and medical treatments. These were intended to make their sex characteristics “female”, even though their intersex “condition” did not put their health at risk.
The applicant argues that they had never been informed of the purpose of these treatments, nor of their intersex “condition”. They became aware of it at the age of 23 when they accidentally intercepted a letter in 2000. They only understood the meaning of it in 2014. According to their clinical psychologist, these treatments have caused them serious psychological and psychiatric harm. As a result of the feminising medical program imposed on them without their informed consent, M. has been recognised as a disabled worker and now lives on the disability benefits they receive and faces major socio-economic issues.
On 22 November 2015, the applicant lodged a criminal complaint, inter alia for violences materialised by several non-consensual treatments and surgeries resulting in both physical and moral damage. On 22 April 2016, the national judge rejected their claim because it was time-barred. The decision was upheld on appeal, as well as by the Court of Cassation in a judgment of 6 March 2018.
The applicant claimed before the Court of Cassation that the decision amounted to a violation of Article 6 of the European Convention on Human Rights. According to them, they had not been properly informed by the doctors treating them. They argued that this resulted in an “insurmountable obstacle to prosecution” until the 2000 letter was intercepted. Hence the limitation period should have been suspended and did not start to run until then. The Court of Cassation judged the claimant was, at their age of majority and after within the statute of limitation, perfectly aware of both the reality and the aim of the treatments they had undergone.
Before the ECtHR, the applicant argues that France has failed, on the one hand, to fulfil its positive obligation under Article 3 to take effective measures to protect vulnerable intersex individuals, such as intersex children, from ill-treatments perpetrated by other individuals and, on the other hand, to make an effective official investigation of the case’s facts. They also claim the refusal to investigate their case has amounted to a breach of their right to access to courts under Article 6.
In its decision, the Court unanimously declares the application inadmissible. It states the applicant did not previously raise Article 3 in their complaint, even in substance, before the Court of Cassation. As a result, national jurisdictions were not able to solve the alleged breach of Article 3 by themselves. Drawing from the principle of subsidiarity (which is now enacted in the Preamble of the Convention), the Court therefore decides the applicant did not exhaust all the domestic remedies available pursuant to Article 35 (§59; §§68-74). Under Article 6, the Court also holds that the application was manifestly ill-founded: despite the national jurisdictions’ decision not to proceed with a criminal investigation, the applicant could still file a claim for civil damages. There was consequently no deprivation of access to courts (§§78-85).
This case was the first opportunity for the Court to rule on “normalising” medical treatments of intersex persons. This “fresh field” partly explains why in our third-party intervention we prompted the Court to ground its reasoning in existing legal developments, i.e. the growing international and European human rights trend to prohibit these treatments and to qualify them as discriminatory ill-treatments against intersex people.
The Court chooses not to follow the points we made. By declaring the application inadmissible, it fails to send the States a strong and unequivocal signal requesting them to explicitly prohibit the impugned medical “normalisation” proceedings or take effective measures to protect vulnerable intersex individuals’ bodily integrity. Yet, it has done so, although in totally different context, for trans people’s rights (e.g. Y.Y. v. Turkey and A.P., Garçon and Nicot v. France).
We tackle the Court’s decision under four axes: qualification of ill-treatments (I.), right to access to courts (II.), prohibition of discrimination (III.) and children’s rights (IV.). We highlight some of its pitfalls and point at a few elements that deserve further consideration by the Court and other jurisdictions at large.
Even though the Court sets aside the argument made by the applicant (and other third-party interveners) under Article 3 for admissibility reasons, it leaves the door ajar as to whether the “normalising” medical treatments fall under the scope of this article (§63).
Starting with a bold and meaningful statement (§59: “Considering the nature of the issues at stake in the present case”; our emphasis), the Courts recalls some fundamental principles relating to this provision and states that a medical procedure carried out in the absence of any therapeutic necessity and without the free and informed consent of the patient could be qualified as ill-treatment (§61). It adds that sterilisation performed without satisfying these conditions is in principle incompatible with freedom and human dignity, which are two core values protected under the Convention, and therefore amounts to ill-treatment (see V.C. v. Slovakia, §§119-120, N.B V. Slovakia, §§80-81 and I.G. and others v. Slovakia, §§123-126). It further declares that this is the case, for example, of genital mutilations including those performed on a child (§62; see on this matter Izevbekhai v. Ireland, §73 and Sow v. Belgium, §§62-64).
We believe there is an implicit, albeit undisputable, statement given to the States. The Court seems to say it is ready to further scrutinise the medical practices at stake once the issue is brought again to Strasbourg in the future (insofar the case is declared admissible). This view is supported by the many international and European human rights actors’ decisions, reports and papers condemning these practices to which the Court explicitly refers in its decision (see §§39-48), but also by the logic of the reasoning: it is worth noticing that the Court deals with some of the substantial aspects of Article 3 (§§59-63) before treating those that are closely linked to the admissibility (§§68-74), leading to a significant prioritisation of arguments.
Behind what looks like an excess of formalism, the Court alleges that the key question raised by the applicant is whether the refusal to proceed with criminal investigations on the grounds that the statutes of limitation expired on the day of their majority amounts to a violation of their right to access to courts (§80). The Court declares there would be no breach of this right if the applicant had another “accessible and effective remedy to assert her [sic] civil right to compensation” (§81). Applying this principle to facts of the case, the Court holds that they effectively had a “reasonable opportunity to bring a civil claim” (§72; §82; our emphasis). According to the decision, this is because a lawsuit could be brought before either a civil judge or administrative courts (if the defendant is the hospital) (§83). Three observations can be drawn from this.
Firstly, one could regret the Court’s reasoning does not examine the requirements and effects of a civil claim in comparison with those of a criminal one. Nor does it address the issue of the limitation period raised before the domestic judges in spite of the now long-lasting demand made by intersex associations to extend the length of the statutes of limitation.
Secondly, the Court does not elaborate on the “reasonableness standard” it refers to. Does it include the psychological burden of introducing another claim to another judge, particularly when the claimant is seriously depressed and mentally distressed, such as M., because of their physical sufferings and abuses? Whatever the answer might be, the benchmark set out by the Court seems too vague and unclear, and therefore low. Clues and indications should be given to avoid a sense of arbitrariness.
Lastly, by focusing on procedural arguments, the Court gives the impression to turn a blind eye to the very essence of the case which is about medical treatments that deeply affects intersex people’s human dignity. Before the national jurisdictions, the issue of the statutes of limitation was raised due to an argument (logically) made by the French public prosecutor. The judicial debate was diverted when it had been raised before the court of appeal and the Court of Cassation, but it did not mean the applicant had given up their claim substantially (see B. Moron-Puech, 19 May 2022). Impugned medical practices were the reason why the applicant complained under criminal law in the first place. If one considers the national judicial proceedings as a whole, both the questions of the alleged offences and the statutes of limitation were inextricably linked. Unfortunately, this is disregarded by the Court.
Although “normalising” medical treatments are imposed on intersex persons’ bodies because of their “atypical” sex characteristics, the Court makes no reference in its decision to the principle of non-discrimination guaranteed by Article 14. This is due to the content of the application: there was no allegation made under this provision.
In our third-party intervention nevertheless, we encouraged the Court to rule on the case from the perspective of this principle. Indeed, intersex persons are treated differently from dyadic persons (i.e. persons whose sex characteristics fully fit the [medical] sex definition) because they undergo “normalising” medical treatments, despite the fact that the “variations” in their sex characteristics are the result of a natural and biological process, for which there is absolutely no reason to medically intervene (except in situations of medical emergency).
According to us, this difference in treatment is based on “sex characteristics”. Since Article 14 explicitly forbids discrimination on the basis of sex, and “sex characteristics” are part of the definition of “sex”, differences in treatment on the basis of sex characteristics are implicitly covered by said Article. We however pointed out that the Court could decide for various reasons to extend the list of grounds of discrimination – which is indicative and not exhaustive (Engel and Others v. the Netherlands, §72) – to include “sex characteristics”, as it did for sexual orientation in 1999 (Salgueiro Da Silva Mouta v. Portugal, §28) and for gender identity in 2015 (Identoba and Others v. Georgia, §96).
As for the margin of appreciation of the State, we thought the Court should restrict it under the label of vulnerability because intersex persons are a minority group, in most of the cases minors (see below) and subject to scathing stereotypes.
Considering the Court does not say a word in its decision about Article 14, it is difficult to predict whether the impugned medical practices we see as structural forms of discrimination will be considered as such by the Strasbourg judges in (a) potential future litigation(s). We cannot but encourage the Court to go down this path.
Because the Court does not enter into the details of the case in its substance, it is not very sensitive to the fact that the applicant was under the age of 18 – therefore minor – at the time of some irreversible medical interventions. The Court only refers to children’s specific protection under law when it states that genital mutilation practiced on a minor is in principle incompatible with the Article 3 (see above).
As we explained in our third-party intervention, medical treatments have been, in most of the cases, imposed on the bodies of intersex children or teenagers who, according to the Court’s case-law, enjoy specific protection because of their age and vulnerability (Söderman v. Sweden, §81). Since the mid-20th century, such treatments have been carried out in disregard of the child’s opinion or consent. International legal standards, such as the United Nations Convention on the Rights of the Child (A. v. United-Kingdom, §22; A.B. and others v. France, §150), have (in many instances, deliberately and repeatedly) been ignored. Yet, intersex minors can claim protection under different provisions of that Convention, such as the right to freely express their own views in all matters affecting them (Article 12), the right to privacy and family life (Article 16), the right to be protected from all forms of physical and mental violence (Article 19), the right to enjoy the highest attainable standard of health (Article 24), the prohibition of ill-treatments (Article 37), etc. At the heart of the UN Convention is the core principle according to which the best interests of the child shall be a primary consideration (Article 3). As stated by the UN Committee on the Rights of the Child, it undisputedly applies to intersex children (see the Concluding observations on the States’ periodic reports listed in the resources of OII-Europe). In the future, the Court may (and should) turn to its earlier case law that actually does rely on the UN Convention and other related principles (e.g. Youssef v. The Netherlands, §73) to set up a powerful benchmark to protect intersex children’s liberty and dignity in the Council of Europe.
Although it was demonstrated the Court has in its toolbox all it needs to protect the bodily integrity of intersex people, who have gained visibility throughout the years in society and in the media, the Court defers the issue by rejecting the application on admissibility (and procedural) grounds.
On a positive note, however, the Court does not dispute the very existence of intersex people and what they have gone through surgically and hormonally. The decision to reject the application on admissibility grounds should not conceal or diminish key elements that are outstanding from a legal, but also social, standpoint. The Court makes intersex people “apparent”, meaning that from now on they deserve serious consideration. This is also the first time that a supranational jurisdiction suggests that the principles arising from the prohibition of ill-treatments could be applicable to intersex individuals’ medical treatments, therefore paving the way for effective prohibition and/or protective measures at the domestic level.
One explanation for the Court’s deferral through the period of limitation argument is that, before going further, it might be willing to give States time to review their legislative statutes and reconsider their medical protocols. It appears this “politico-diplomatic soft strategy” is working – at least in France. Even before the Court’s decision, the French legislative authorities had already revised their Public Health Code by adopting the Bioethics Act in August 2021. Even though it does not prohibit medical interventions on intersex bodies, it now regulates intersex children’s medical care (Article L. 2131-6). The Code had to be completed by a governmental decree “setting out the rules of good practice for care” (Article L. 1110-5). On 15 November 2022, such a decree was issued. In alignment with the high standards established by intersex associations, the decree states that “the sole purpose of conforming the child’s atypical genital organs to representations of the feminine and masculine does not constitute a medical necessity. It is appropriate to wait in this case until the minor is capable of participating in the decision” (Annex, II-3, Aims). If this makes theoretically victory for intersex persons’ bodily integrity and human dignity in France, it obviously remains to be seen how the decree will be implemented by medical practitioners on the ground.
 Because the applicant’s gender identity is “fluctuant”, this blogpost will use gender neutral language and the gender-neutral pronouns “they/them” to refer to the applicant.