X and Y v. Romania: the ‘impossible dilemma’ reasoning applied to gender affirming surgery as a requirement for gender recognition

By Sarah Schoentjes, PhD Researcher at the Human Rights Centre of Ghent University, and Dr. Pieter Cannoot, Postdoctoral Researcher at the Human Rights Centre of Ghent University and Visiting Professor at the University of Antwerp

In the case of X and Y v. Romania, the ECtHR has declared one more abusive requirement for gender recognition to be a violation of article 8 of the Convention. Almost two years after X v. FYROM, in a case with a similar fact pattern, the Court finally declared that requiring trans persons to undergo gender affirming surgery before they could obtain legal gender recognition violates their human rights. Though the judgment is not without flaws – notably, the Court’s now steadfast refusal to examine gender recognition cases under art. 14, – X and Y v. Romania is a momentous development in the Court’s case law, guaranteeing trans people an extra level of much-needed protection, recognition and autonomy.

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X v. FYROM: A circumspect compromise on trans* rights?

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. Continue reading