December 17, 2024
By Marie-Hélène Ludwig and Arpi Avetisyan
Y.T. v. Bulgaria is among the rare cases where the ECtHR has adjudicated on the revision of a judgment under Rule 80 of the Rules of the Court. In its original judgment of 9 July 2020, the ECtHR found a violation of ECHR Article 8 as domestic courts refused to grant legal gender recognition (“LGR”) to the applicant without providing relevant and sufficient reasons and without explaining why it had been possible for domestic courts to grant LGR in other cases. ILGA-Europe (to which the authors have been affiliated in present or past capacity) filed a third-party intervention in that case jointly with TGEU and the Bilitis Resource Center Foundation.
Upon request of the Bulgarian government, this judgment was revised by the Court on 4 July 2024. In this second judgment, the Court decided that the application was inadmissible as the applicant had not disclosed to the Court the fact that he had obtained LGR in a second national court proceeding while his case was pending before the Court, which constituted an abuse of rights. The Court nevertheless made clear that this revision did not affect Bulgaria’s obligations under Article 8, confirmed in the case of P.H. v. Bulgaria.
The applicant is a trans man who sought LGR before Bulgarian courts to amend his name, gender marker and identification number in civil records. His application was supported by a medical expertise confirming his gender identity. Both the district and regional courts of Stara Zagora denied his request in 2015 and 2016 respectively. As a result, the applicant was prevented from pursuing the surgery he intended to have, which was dependent on a prior LGR decision. The Court’s 2024 judgment revealed that the applicant had initiated a second set of proceedings before the district court of Sofia to seek LGR, which was granted in 2017. This gave rise to the revision request by the Government in 2023.
At the time of initial proceedings and as highlighted in the third-party intervention in the initial application, LGR was not comprehensively regulated under Bulgarian law and trans people were forced to lodge a request before ordinary courts to that end. Outcomes in individual cases varied greatly. In successful cases, judges placed great emphasis on the modification of secondary sex characteristics and expected at the minimum the person concerned to have had hormonal treatment. In 2017, the Supreme Court of Cassation stated in an LGR case that the claimant had to prove “their serious and unwavering intent to biologically affirm the role they perform psychically and socially”, by “at the very least” undergoing hormonal treatment in line with existing court practice. This decision reinforced the biological transformation of gender as a prerequisite for LGR in Bulgaria, forcing trans people to undergo potentially severe body alterations to change their gender marker.
Following the Court’s judgment in Y.T. v. Bulgaria and despite the fact that it was confirmed two years later in P.H. v. Bulgaria, the situation for trans persons seeking LGR in Bulgaria deteriorated significantly. In March 2021, the General Assembly of the Supreme Court of Cassation submitted a request for interpretation of the Constitution to the Constitutional Court. On 26 October 2021, the Constitutional Court reached the conclusion that “sex” should be understood only in its biological sense and have a binary biological meaning since the Bulgarian language does not contain an equivalent term for “gender” and that it is contrary to societal values and customs. On 20 February 2023, the Supreme Court adopted an interpretative decision no. 2/2020 that established that the Bulgarian legal framework does not enable the courts to allow a change of data on the civil status register regarding the sex, the name and the personal identification number of trans persons. This decision thus introduced a general, automatic and universal de-facto ban on general Bulgarian courts to allow LGR.
In its 2020 judgment, the Court examined whether domestic court’s refusal to grant the applicant’s request was a disproportionate interference with his right to private life. The Court noted that Bulgarian courts’ decisions were based on “disparate arguments” including a general interest argument outweighing the possibility of LGR. The Court found that domestic courts had failed to strike a balance between this interest and the applicant’s right to recognition of his gender identity. In the Court’s view, this rigid reasoning had placed the applicant for an unreasonable and continuous period in a troubling position in which he experienced feelings of vulnerability, humiliation and anxiety. Finally, the Court referred to international recommendations that States should provide LGR in a quick, transparent and accessible way. The Court therefore unanimously held that Bulgaria had failed to fulfil its obligations under Article 8 ECHR by refusing to grant LGR to the applicant without providing relevant and sufficient reasons and without explaining why it had been possible to do so in other cases.
This judgment was confirmed in a similar case of P.H. v. Bulgaria on 27 September 2022. P.H. concerned a trans woman who was repeatedly denied her LGR request by domestic courts in breach of Article 8 as the courts had not provided relevant and sufficient reasons to do so.
In the 2024 revision judgment, the Court examined whether the conditions set out by Article 80 of the Rules of the Court were fulfilled. First, it considered that the 2017 decision granting LGR to the applicant became final and effective only after the submission of the Government’s observations in the main procedure. It also found that the applicant and his lawyer had knowingly omitted to inform the Court of the second procedure initiated by the applicant and this same lawyer before domestic courts. As a result, the Court concluded that the Government could not reasonably be held responsible for ignoring the facts in question. Second, the Court confirmed that the Government had filed the revision request within the prescribed six-month period. Third, the Court decided that the discovered fact might have had “a decisive influence” on its judgment as the “core” of the application related to the refusal of the domestic authorities to grant LGR while the applicant had in fact been granted such request. In the Court’s view, this showed that LGR was possible in Bulgaria (which, as shown above, does not meet the “quick, transparent and accessible” criteria and is not the case anymore since 2023). The Court considered that, at the very least, this circumstance could have had a decisive influence as regards just satisfaction. As a result, the Court decided to revise its judgment.
The Court considered that the applicant had breached his obligation under Articles 44 C § 1 and 47 § 7 of the Rules to keep the Court informed of all facts relevant to the application and of his duty to cooperate with the Court under Article 44 A of the same text. As he had knowingly omitted to inform the Court of a new circumstance without explaining this failure, the application was considered abusive and therefore inadmissible under Article 35 § 3 ECHR. Nevertheless, and taking note of the Supreme Court of Cassation’s interpretative decision of 2023, the Court recalled the State’s obligation to comply with its previous rulings on LGR and more specifically with its judgment in P.H. v Bulgaria that found a violation of Article 8 in a similar case. The Court made clear that these Article 8 ECHR obligations remained unaffected by the revision.
Judge Šimáčková issued a dissenting opinion showing how the Court could have ruled on the revision request differently to guarantee trans people’s rights in Bulgaria.
She pointed out that the applicant was in a very distressing situation and fought not only for himself in this judicial procedure but for others in a similar situation in the country. She underlined the need for the judges to put themselves in the place of trans persons facing unclear and arbitrary national legislation left with applying to courts as the only option, which might be an “unbearable” option.
Judge Šimáčková suggested that the Court could have revised the judgment without punishing the applicant for abuse of rights, which would have allowed the Court to rule on the domestic legal framework.
Finally, Judge Šimáčková rightly considered that an applicant, whose fundamental rights were breached, should not be punished for formalistic reasons that the responsible legal representative should have known. The Court could have sanctioned the applicant by reducing the compensation awarded or rather by sanctioning the applicant’s representative, who is a legal professional supposed to fulfil the duty of cooperation.
Although the revision judgment is certainly an important reminder of the responsibility of lawyers to inform the Court of all relevant developments in the cases brought before it – including any parallel procedures not directly pertinent to the case at hand – it missed an opportunity to protect a particularly vulnerable applicant and to address a systemic violation of trans people’s fundamental rights in Bulgaria.
As argued by the applicant, even though he ended up obtaining LGR by initiating a second domestic court procedure, he remained a victim having suffered from the lack of legal recognition of his gender identity for years. A decision by the ECtHR on the legal framework was crucial for bringing clarity and making the procedure human rights compliant. It is telling that only three years after the Court’s 2020 judgment in Y.T., the Supreme Court introduced a de facto ban on general Bulgarian courts to allow LGR in clear violation of the ECHR and the Court’s case law. As mentioned above, such a ban is general, automatic, and universal, and it concerns everyone seeking LGR regardless of their situation.
As a result of this decision, Bulgarian courts now refuse to consider the merits of transgender persons’ applications for LGR, without looking into the particularities of each individual case.
The core of the applicant’s complaint concerned the Stara Zagora court proceedings. The fact that he was able to obtain LGR as a result of proceedings before the Sofia district court, does not change the key paragraphs 48 and 49 of the original judgment. In the case of X and Y v. Romania, while the Court acknowledged that one of the applicants had eventually obtained LGR after initiating three court procedures, it confirmed that he was still a victim under Article 34 ECHR as he had faced an impossibility to obtain LGR for five years, which impacted his private life during that time. The judgment he finally obtained also did not explicitly acknowledge a violation of his rights under the ECHR. A similar decision could have been reached in the Y.T. v Bulgaria case as the judgment obtained by the applicant in 2017 did not remedy the violation of his Article 8 rights he faced during the first procedure he initiated.
This revision judgment is therefore a missed opportunity for the Court to rule on the Bulgarian legal framework that has severely deteriorated since its 2020 judgment.
Y.T. v. Bulgaria is not the first case in which the Court addressed a State’s failure to provide an adequate legal framework for LGR. The Court acknowledged for the first time that Article 8 required States to adopt an LGR procedure in the seminal judgment Christine Goodwin v. UK in 2002, a ruling reiterated on several occasions since then. The Court subsequently clarified that LGR procedures should be “effective and accessible” (in Hämäläinen v. Finland) or “quick, transparent and accessible” (more recently in A.D. v. Georgiaor R.K. v. Hungary for instance). LGR procedures should also be free from any medical requirements including sterilisation, surgery or hormonal treatments (A.P., Garçon and Nicot v. France, S.V. v. Italy, X. and Y. v. Romania).
As detailed in the joint intervention, denying a trans person the legal recognition of their gender identity has a severe impact on their daily lives. Identification documents are required on a daily basis in a variety of interactions including employment, health, access to banking and other services, or marriage. Disagreement between one’s gender expression and personal documents may cause forced “outing” for a trans person, potentially leading to humiliation and harassment. Documents correctly identifying the holder’s gender identity are essential for participation in social life, developing stable and cognizable family relationships. As such, the Court has described gender identity as “one of the most intimate areas of a person’s private life” (Van Kück v. Germany) and as “one of the most basic essentials of self-determination” (Y.Y. v. Turkey).
While these cases have considerably contributed to the protection of trans people’s fundamental rights, the Court tends to employ outdated language notably in its French decisions, including in the Y.T. case, that is not human rights compliant. In particular, using terms such as “transsexuel” (instead of “personnes trans/transgenre”/“trans/transgender person”), “identité sexuelle” (instead of “identité de genre”/“gender identity”), “conversion sexuelle” (instead of “transition de genre”/“transition”) or “changement de sexe” (instead of “reconnaissance du genre à l’état civil”/“legal gender recognition”) incorrectly sexualise a person’s gender identity and hamper a correct and deeper understanding of the issues at stake. An updated terminology in the Court’s future decisions would be an important step to pave the way for adequate implementation of human rights safeguarded in its decisions.
Various Council of Europe bodies have also urged States to adopt LGR procedures in line with the Court’s case-law and “based on self-determination” (Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity, § 21; Resolution 2048 (2015), Discrimination against transgender people in Europe, § 6.2.1, see also Yogyakarta Principles, Principle 3).
Despite this clear obligation, it is apparent from the legal developments in Bulgaria described above that the authorities not only show inaction in implementing the Court’s judgments but also actively misinterpret the essence of the Court’s findings, hindering the execution process. Over two decades ago, the Court established that biological factors cannot be used to determine a person’s gender marker (Christine Goodwin v. UK). The Bulgarian Constitutional Court and Supreme Court of Cassation decisions not only turned a blind eye to the Court’s case law and the Council of Europe recommendations but went against the clearly established Convention principles. As a result, the Council of Europe’s Committee of Ministers (“CoM”) put the monitoring of the Y.T. and P.H. cases under enhanced supervision and issued strongly worded recommendations following its examination of the cases in September 2023 (1475th meeting (DH), September 2023). Exceptionally, considering the gravity of the situation and the uncertainty faced by trans people in Bulgaria on obtaining LGR, the CoM went further, requesting Bulgarian authorities of “the possibility to adopt interim measures to allow the examination of LGR pending the adoption of permanent legislation”.
Alarmingly, without the repetitive P.H. case, it would have been impossible to pursue the implementation of the general measures at stake as a result of the revision decision in the Y.T. case. Preserving a clear ruling on the legal framework rather than revising the judgment in its entirety would have been even more important in the present case of systemic and grave violations of trans persons’ fundamental rights in Bulgaria.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
