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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Legal sex/gender recognition beyond the binary: Human Rights Centre submits Third Party Intervention

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[1], in collaboration with the Equality Law Clinic from the Université Libre de Bruxelles[2], 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.[3] 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. 

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