02 Mar The authorities’ refusal to replace the term “male” by the term “neutral” or “intersex” on the birth certificate in line with Article 8 of the Convention

In the case of Y v. France (application no. 76888/17, 31.01.2023) the European Court of Human Rights held, by six votes to one, that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. 

 The applicant, who is a biologically intersex person, complains about the domestic courts’ refusal to grant his request to have the word “neutral” or “intersex” entered on his birth certificate instead of “male”.
In examining the case in the light of the respondent State’s positive obligation to secure to the applicant effective respect for his private life, the Court ascertained whether the general interest had been duly weighed against the applicant’s interests.

The Court noted, firstly, that an essential aspect of individual intimate identity was central to the present case, in that gender identity was in issue, and acknowledged that the discrepancy between the applicant’s biological identity and his legal identity was liable to cause him suffering and anxiety. The Court then acknowledged that the arguments put forward by the national authorities in refusing the applicant’s request, based on respect for the principle of the inalienability of civil status and the need to preserve the consistency and reliability of civil status records and of the social and legal arrangements in place in France, were relevant. It also took into consideration the Court of Cassation’s reasoning to the effect that judicial recognition of a “neutral” gender would have far- reaching consequences for the rules of French law, constructed on the basis of two genders, and would imply multiple coordinating legislative amendments.

After noting that the Orléans Court of Appeal had held that granting the applicant’s request would amount to recognising the existence of another gender category and therefore to exercising a normative function, which was in principle a matter for the legislature and not for the judiciary, the Court pointed out that respect for the principle of the separation of powers, without which there was no democracy, had thus been at the heart of the domestic courts’ considerations. Recognizing that although the applicant stated that he was not asking for the enshrinement of a general right to recognition of a third gender, but only for rectification of his civil status, the Court noted that if it were to uphold the applicant’s claim this would necessarily mean that the respondent State would be required, in order to discharge its obligations under Article 46 of the Convention, to amend its national law to that effect; in consequence, the Court considered that it too was required to exercise restraint.

In matters of general policy on which opinions within a democratic society could reasonably differ widely, a special weight had to be accorded to the role of the domestic policy-maker. This was particularly true where, as in the present case, the question was one on which society would have to make a choice. In the absence of a European consensus in this area, it was therefore appropriate to leave it to the respondent State to determine at what speed and to what extent it could meet the demands of intersex persons, such as the applicant, The Court concluded that, having regard to the discretion (“margin of appreciation”) enjoyed by the respondent State, France had not failed in its positive obligation to secure effective respect for the applicant’s private life; it followed that there had been no violation of Article 8 of the Convention.

Reference from the official website of the European Court of Human Rights