The legally enshrined right to gender reassignment not enforceable in practice

In the case of A.D. and Others v. Georgia (application no. 57864/17, 01.12.2022) 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 applicants are transgender men (assigned female at birth). The case concerned their complaints that they had been unable to obtain legal recognition of their gender because they had not undergone sex reassignment surgery.

Under Article 8 of the Convention, the Court’s case-law on legal gender recognition had already found that member States were expected to provide quick, transparent and accessible procedures for changing the registered sex of transgender persons. 

The Court observed that, not only was the right to have one’s sex changed in civil-status records enshrined in law in Georgia, but it was also interpreted as forming part of the constitutional right to free development of personality under Article 12 of the Constitution. However, despite the fact that such a right had existed in the country since 1998, there had not apparently been one single case of successful legal gender recognition.

The Court accepted that legal gender recognition had to be regulated in order to safeguard the principle of civil status, the consistency and reliability of civil-status records and, more broadly, the need for legal certainty. However, whilst the right to have one’s sex changed in civil-status records existed in Georgia, the law did not clearly indicate the terms and conditions to be fulfilled for legal gender recognition to take place. The Government had also omitted to address the Court’s specific question regarding the exact medical procedures required for the purposes of legal gender recognition. The Court found therefore that domestic law and practice did not provide any indication of the exact nature of the medical procedures to be followed.

It also observed that the Government put forward that the expression “change of sex” in the Civil Status Act had to be assessed on “biological, physiological and/or anatomical criteria”. However, the utmost care and precision was required when using such different terms interchangeably, because each of those terms had its own particular meaning and entailed distinct legal implications. For instance, if “change of sex” was to be defined on the basis of biological criteria, then it would never be possible to obtain legal gender recognition, as chromosomes could not be changed by any amount of medical intervention.

The Court found that the inconsistencies in the reading of the domestic law by the domestic courts were conditioned, at least in part, by the fact that the law itself was not sufficiently detailed and precise. The imprecision of the current legislation undermined the availability of legal gender recognition in practice, and the lack of a clear legal framework left the domestic authorities with excessive discretionary powers, which could lead to arbitrary decisions. The Court concluded that there had been a violation of Article 8 of the Convention.

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