25 Jan The authorities’ refusal to legally record a change of sexual identity without surgery led to a violation of the Convention
In the case of X and Y v. Romania (applications nos. 2145/16 and 20607/16, 19.01.2020) the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The case concerned the situation of two transgender persons whose requests for recognition of their gender identity and for the relevant administrative corrections to be made were refused on the grounds that persons making such requests had to furnish proof that they had undergone gender reassignment surgery.
The applicants argued that the lack of an appropriate legal framework had allowed the authorities to impose an additional requirement on them in order to have their requests granted, in the form of gender reassignment surgery. The Court observed at the outset that there was no specific procedure under Romanian law for dealing with requests for legal recognition of gender reassignment. Nevertheless, in a ruling of 2008 the Constitutional Court had acknowledged the possibility of having a change of gender recognised by the courts, and the civil courts dealing with the applicants’ requests had taken the view that the Romanian legislation allowed a change of gender to be recognised. The Court could therefore accept that a legal basis had existed in Romanian law allowing individuals to bring proceedings in order to have the substance of their requests concerning gender reassignment examined. However, the Court considered that the Romanian legal framework for the recognition of gender had been unclear and therefore unforeseeable.
As to the requirement for individuals to undergo gender reassignment surgery in order to have their civil-status records amended, it was clear from the case file that the domestic courts had ruled that the applicants were transgender on the basis of detailed information. The courts had noted, in particular, that the applicants had undergone hormonal therapy and had had mastectomies. However, the courts had refused to recognise the applicants’ gender reassignment on the grounds that they had not had genital surgery for that purpose. The courts took the view that the principle of self-determination did not suffice to grant the applicants’ requests for gender reassignment.
The Court observed that the national courts had presented the applicants, who did not wish to undergo gender reassignment surgery, with an impossible dilemma: either they had to undergo the surgery against their better judgment – and forego full exercise of their right to respect for their physical integrity – or they had to forego recognition of their gender identity, which also came within the scope of respect for private life.
The Court held that the domestic authorities’ refusal to legally recognise the applicants’ gender reassignment in the absence of surgery amounted to unjustified interference with their right to respect for their private life. There had therefore been a violation of Article 8 of the Convention on account of the lack of a clear and foreseeable procedure for the legal recognition of gender identity making it possible to amend the indication of gender, and hence the person’s name and digital personal code, on official documents in a quick, transparent and accessible manner.
References from the official website of the European Court of Human Rights