Towards a fundamental right to "choose one's sex"?

ECHR, A.P., Garçon and Nicot v. France, 6 April 2017, No. 79885/12, 52471/13 and 52596/13

On the 6^th of April 2017, the Fifth Section of the European Court of Human Rights published its judgment in A. P., Garçon and Nicot v. France case (No. 79885/12, 52471/13 and 52596/13) in the field of transsexualism, precisely as regards the conditions for the legal recognition of transgender persons by changing mention of sex in the civil registry.

The three French applicants A. P., Emile Garçon and Stéphane Nicot are male transgender persons. They each introduced a procedure to have their new female gender identity recognized and to have their gender and forenames modified in the civil registries. On the basis of the right to respect for private life (Article 8 of the European Convention on Human Rights), they complained of the refusal of the French courts in 2012 and 2013 on the grounds that they did not bring the proof of the reality of the transsexual syndrome (for the second applicant) and the irreversibility of the transformation of their appearance, conditions made in this subject by the French supreme court (1st Civil Division, 7 June 2012 and 13 February 2013). According to them, this second condition imposed, to undergo a prior operation or a treatment involving sterility. The first applicant also complained that he had been obliged to undergo a medical exam as part of the procedure for obtaining a change of mention of sex in his civil registry. The applicants consider that “it appears from the case-law of the Court that Article 8 sanctions the fundamental freedom to define one's gender identity without conditioning its exercise to the diagnosis of a psychiatric pathology or to medical or surgical treatment” and that as such “the criteria adopted by the French supreme court would be in contradiction with this concept, since they would not be based on the idea that the change of sex is a fundamental freedom but on that which the applicants for the change of civil status suffers from a mental disorder affecting his sexual identity, to which the operation of sexual conversion is destined to put an end” (§ 103).

The condition of irreversibility of the transformation of appearance violates the right to privacy.

In the present case, the Court has verified whether “in retaining the impugned reason as a ground for dismissing the applicant’s request, the respondent State, having regard to its wide margin of appreciation, had struck a fair balance between the competing interests” (§ 101). It concluded by a majority that determining the change in the civil registry to the evidence of the reality of the transsexual syndrome and the obligation to undergo medical examinations does not violate Article 8 of the Convention in view of the broad margin of appreciation enjoyed by the State in such cases. But it condemned France by six votes to one in that it refused to access the applicants' request on the ground that they did not provide evidence of the irreversibility of the transformation of their appearance. The applicants further denounced the fact of conditioning the change in the civil registry to the evidence of the irreversibility of the transformation of appearance was discriminatory, since that meant it reserved the right to its access only to “real transsexuals” to the exclusion of other transgender people who cannot or do not want to undergo surgery or hormone therapy with irreversible consequences. The Court did not, however, express itself on that point since it concluded that the condition of irreversibility of the transformation of appearance in French law at the time of the fact did violate Article 8 of the Convention. After saying again that, as regard transsexualism, Article 8 includes a right “to define [one’s gender], one of the most basic essentials of self-determination. (Van Kuck, § 73)” (§ 93). The Court first concludes that Article 8 of the Convention is applicable where sexual identity is an element of personal identity and falls within the scope of the right to respect for private life (§ 95). The Court then notes that the law in force at the time, determining the recognition of the transgender person's sexual identity on the irreversibility of the transformation of appearance, implied to undergo a sterilizing operation or treatment involving high probability of sterility (§ 120), contrary to the assertion of the French Government (§ 106). The Court also notes the lack of consensus among the Member States on the condition of sterility but the existence of a tendency to abandon it since 2009. It also admits that delicate moral and ethical issues are raised in the case and that public interests (§ 122) can being found, as the Government explains (§ 106), in the principle of the non-availability of the human body, the guarantee of the reliability and the consistency of civil status and the requirement for legal certainty. Despite this, the Court concluded that the State had only a limited margin of appreciation because, since the physical integrity and sexual identity of individuals were at stake, “an essential aspect of the intimate identity of persons, if not their existence, is at the heart of these petitions” (§ 123).

Thus, the Court “fully admits that the protection of the principle of the non-availability of the human body, the guarantee of the reliability and the consistency of civil status and the requirement for legal certainty fall within the general interest. It finds, however, that in the name of the general interest so understood, French positive law, as established at the material time in the present cases, put transgender persons who did not wish to receive full sexual reassignment before a insolvable dilemma: either to undergo, against their own will, a sterilizing, or very likely to have an effect of this nature, operation or treatment, and renounce the full exercise of their right to respect for their physical integrity, falling notably within the right to respect for private life which is guaranteed by Article 8 of the Convention; or to renounce to the recognition of their sexual identity and therefore the full exercise of the same right” (§ 132). The Court therefore considers that in the name of the general interest, the condition of irreversibility of the transformation of appearance brings the right to respect for private life and to the right to respect for one’s physical integrity in conflict: it concludes to the violation of Article 8 of the Convention, since the State had not maintained a fair balance between the general interest and the private interests of persons.

A Judgment in line with the evolution in the case law on transsexualism

This judgment follows a long series of cases about transsexualism in which the Court has ruled on various issues. In the first cases which concerned the legal recognition of the sexual identity of transsexual persons who had undergone a reassignment operation, particularly the refusal of the authorities to amend the reference to civil registries, the Court first admitted that such refusal did not violate Article 8 of the Convention (Rees v. The United Kingdom, No. 9532/81, 10 October 1986, Cossey v. The United Kingdom, No. 10843/84, 27 September 1990). In the B. v. France case (No. 13343/87, 25 March 1992), for the first time it found a violation of Article 8 in that the French authorities had refused to amend the reference to sex in the civil registry. However, it took into account the differences between the French and English civil registry systems, which distinguished this case from the previous ones. In the cases of X, Y and Z v. The United Kingdom (No. 21830/93, 22 April 1997) concerning the establishment of a relationship between a transsexual and the child of a partner born as a result of an artificial insemination with a donor and Sheffield and Horsham v. The United Kingdom (No. 22985/93 and 23390/94, 30 July 1998) on the legal recognition of sexual conversion, the Court held that there had been no violation of Article 8.

Sixteen years after the Rees case, Christine Goodwin v. The United Kingdom (28957/95, 11 July 2002) marked a turning point, when the Court ruled in favour of a transsexual applicant who complained of the lack of legal recognition of her change of sex, which had consequences in various fields, including the impossibility to marry : the Grand Chamber concluded that there had been a violation of Article 8 by noting “the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals” (§ 85), and arguing that “since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, (…) the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant.” (§ 93). The Grand Chamber also concluded to a violation of the right to marry and to found a family (Article 12), since it was not convinced it would still be fair to admit that sex should be determined solely on the basis of biological criteria (§ 100). On the same day, the Grand Chamber found out that there had been a violation of Articles 8 and 12 in the case I v. The United Kingdom (25680/94, 11 July 2002). Subsequently, the Court again dealt with the same issue in the cases Grant v. The United Kingdom (No. 32570/03, 23 May 2006: violation), P. v. Portugal (No. 56027/09, 6 September 2011: application struck out), Cassar v. Malta (No. 36982/11, 9 July 2013: application struck out). It also spoke on other issues such as the conditions for obtaining sex reassignment surgery: in the L. v. Lithuania case (No. 27527/03, 11 September 2007), it found a violation of Article 8 in that the absence of an implementing decree on surgical sexual conversion operations left transsexual persons uncertain as to the legal recognition of their identity otherwise provided for by the law of Lithuania (See also YY v. Turkey, No. 14793/08, 10 March 2015: violation). Regarding the financial responsibility for such an intervention, the Court found that there had been a violation of Article 6 § 1 and 8 in the case of Van Kück v. Germany (No. 35968/97, 12 June 2003), judging that within the framework of the proceeding for reimbursement of costs against an insurance company, “the burden placed on a person to prove the medical necessity of treatment, including irreversible surgery, in one of the most intimate areas of private life, appears disproportionate” (§ 82). In the case of Schlumpf v. Switzerland (No. 29002/06, 8 January 2009), the Court admitted that the refusal by the health insurance scheme to take over the operation of a person aged 67, in the absence of a two-year pre-trial period provided in the case-law (see also D.C. v. Turkey, No. 10684/13, 7 February 2017: inadmissibility), violated Article 8. The Court also addressed the consequences of the change of sex: in P. V. v. Spain (35159/09, 30 November 2010), the Court concluded that the restriction of the right of access of a transsexual person to his son ordered by the courts on the basis of the best interests of the child was not a discriminatory measure (non-violation of Articles 8 and 14 combined).

As regards the issue raised in the current case, namely, the conditions for the legal recognition of transsexual persons, the Court first had an opportunity to express its opinion in the cases Parry v. The United Kingdom and R. and F. v. The United Kingdom (42971/05 and 35748/05, 28 November 2006): it declared inadmissible as manifestly ill-founded the demands of two married couples in which the husbands had undergone a sexual reassignment operation and claimed for a certificate of recognition of the sex implemented after the Christine Goodwin case in 2004, which was denied to them on the grounds that they were married when same-sex marriage was not allowed. In the case of Hämäläinen v. Finland (No. 37359/09, 16 July 2014), the Grand Chamber held that the fact that the change of reference to sex in the civil status certificate of a married transsexual person was determined on divorce or at least on the conversion of the marriage into a registered partnership did not constitute a violation of Article 8 or of Article 8 in conjunction with Article 14. In the current case, this is the first time that the Court concludes that there has been a violation of Article 8 concerning the conditions for the legal recognition of transsexual persons, although the litigious condition of establishing the irreversibility of the transformation of appearance differs from that in question in previous cases. It is true that in the Y.Y. c. Turkey case the Court judged that definitive sterility as a prerequisite to the process of sex change constituted a violation of Article 8.

Yet, it recalled that “in resolving within their domestic legal systems the practical problems created by the legal recognition of post-operative gender status, the Contracting States had to be granted a wide margin of appreciation.” (§ 106). However, this was not a similar context to the current case since that condition was made to the surgical operation of sexual conversion, not to the downstream legal recognition of transsexuality. The evolution which marks the A.P., Garçon and Nicot case is therefore all the more remarkable that the Court somehow revises the position it took in its judgment in Christine Goodwin (§ 103): “it is for the Contracting State to determine inter alia the conditions under which a person claiming legal recognition as a transsexual establishes that gender re-assignment has been properly effected (…)”. Thus, the Court is far from having exercised caution in this judgment, which, like Christine Goodwin at the time, is not merely “a simple step but a genuine leap” as expressed by Judge Ranzoni in his dissenting opinion (§ 19).

A dubious “leap” forward

Such a position of the Court is highly questionable. Indeed, it amounts to imposing on the member states of the Council of Europe a vision which the overwhelming majority does not share, even though the Court has found that there is no European consensus on the subject: currently and while these numbers have evolved in recent years, as Judge Ranzoni points out in his dissenting opinion, only 18 out of 47 Member States do not condition the recognition to the sterilization of the applicant, whereas 22 apply this condition and 7 do not provide for any recognition of transsexualism. Therefore 29 states will suffer the consequences of the judgment by exposing themselves to future convictions if they do not modify their legislation; paradoxically not France, which is nevertheless condemned in this case, because the law of the 12^th of October 2016 on the modernization of justice in the XXI^st century inserts in the Civil Code an Article 61-6 concerning the modification in reference to sex in the civil status certificate providing that “(...) the fact of not having undergone medical treatment, surgery or sterilization cannot justify the refusal to grant the application”.

If the condition of irreversibility of the transformation of appearance violates the Convention, it must be admitted that, conversely, such a transformation must be able to be reversed and may therefore give rise to multiple changes in the civil registry. This would be detrimental to the public interest, as the Court has fully admitted, in the non-availability of the human body, legal certainty, reliability and consistency of civil status. In the same vein, if the irreversibility of the transformation of appearance implies the sterility, as the Court says, the reversibility implies the capacity to procreate: as a French court of law has pragmatically emphasized (§ 48 of the judgment), a transgendered person could now obtain the change of the reference to his or her sex to the civil registry but reproduce according to the sex that he or she wishes to deny. For example, a woman claiming to have the male sex she adopts, with the exception of the reproductive organs, could change the mention of her sex in the civil registry and procreate “naturally” with another man: will the child she will give birth to have a man for “mother”, and will his or her birth certificate indicate that he/she was born of two men? In judging as it has, the Court makes individual interest prevail over the general interest by potentially sacrificing the interests of the child, the filiation and the family to the omnipotence of the individual will.

Finally, if the condition of irreversibility of the transformation of appearance (which nevertheless has the advantage of putting a clear limit on the opportunity of a change in civil registry) is no longer to its rightful place in the European legislations, the judges will soon have to decide the degree of transformation of appearance the authorities must prescribe to change the civil status of a person claiming to be transgender. The determination of sex is therefore increasingly abandoned to the hazards of individual will, in line with the dangerous so-called “gender” ideology. Such a determination of sex, the natural and fundamental characteristic of the human being inscribed in its genes, is nevertheless a pure fiction, not to say a lie, since a human being is born and remains a man or a woman, even if he/she decides one day to behave like a person of the other sex and to take its appearance to the deepest of his/her intimacy. Thus, although the Court does not explicitly assert a right to “choose one's sex”, it nevertheless reserves the right to examine the conditions which a State may impose on the modification of the reference to sex in civil registries. Given the stakes involved in such a case, it is regrettable, as Judge Ranzoni said, that the Chamber did relinquish the case to the Grand Chamber.

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