Information Note on the Court’s case-law 206

April 2017

A.P., Garçon and Nicot v. France - 79885/12, 52471/13 and 52596/13

Judgment 6.4.2017 [Section V]

Article 8

Positive obligations

Article 8-1

Respect for private life

Legal requirements for rectification of civil status for transgender persons: violation, no violations

Facts – The applicants are transgender persons. Between 2007 and 2009 they applied to the domestic courts to have amended the entries on their birth certificates indicating their sex and first names.

The courts generally dismissed their actions on the grounds that they had not shown that they had undergone the necessary medical and surgical treatment to bring about irreversible gender reassignment.

In the second applicant’s case, the courts also held that it had not been established that he actually suffered from the gender identity disorder in question. In the first applicant’s case, the court attached particular importance to the fact that he had refused to undergo a medical examination to confirm that gender reassignment surgery had genuinely been carried out; the examination had been ordered on the grounds that the evidence submitted by him was insufficient.

In 2012 and 2013 the Court of Cassation rejected their appeals on points of law. Before the European Court, the applicants complained that these conditions (which arose from the law then in force) were in breach of private life or were degrading.

Law – Article 8: The Court considered that the complaints fell to be examined in terms of the Government’s positive obligations to guarantee respect for private life.

(a) The condition that the change in one’s appearance be irreversible (second and third applicants) – Over and above the unfortunate ambiguity in the formal wording of the legislation (the requirement that there be an irreversible change in “appearance”), French positive law did indeed make recognition of the sexual identity of transgender individuals dependent on completion of sterilisation surgery or of treatment which, by its nature and intensity, entailed a very high probability of sterility.

(i) The State’s margin of appreciation – Although there was no consensus among the member States on the criterion of sterility and public interests were indeed at stake, the following elements led the Court to consider that the respondent State enjoyed only a narrow margin of appreciation on this matter:

– at the heart of these applications lay essential aspects of an individual’s intimate identity, and even of his or her existence: on the one hand, physical integrity (given that sterilisation was involved); on the other, sexual identity;

– in addition, the impugned condition had been removed from the positive law of eleven States Parties, including France, between 2009 and 2016, and similar reforms were being discussed in other States Parties. This indicated that a trend had emerged in Europe in recent years with regard to abandoning this criterion, based on changes in the understanding of transgenderism;

– moreover, numerous European and international institutional actors who were active in the promotion and protection of human rights had spoken out very clearly in favour of abandoning the sterility criterion, prior to or concomitantly with the Court of Cassation’s judgments in this case.

(ii) Weighing up the competing interests – Admittedly, safeguarding the principle of the inalienability of civil status, guaranteeing the reliability and coherence of civil status and, more generally, ensuring legal certainty, were matters of general interest.

However, French positive law at the relevant time presented the persons concerned with an impossible dilemma: either they underwent an operation or treatment entailing sterilisation, against their own wishes, and in so doing renounced the full exercise of the right to respect for their physical integrity; or they waived recognition of their sexual identity and thus the right to the full exercise of that same right.

In the Court’s opinion, making recognition of the sexual identity of transgender persons conditional on undergoing an operation or treatment entailing sterilisation – or which would most probably produce that effect – against their wishes, amounted to making the full exercise of one’s right to respect for private life, enshrined in Article 8, conditional on relinquishing full exercise of the right to respect for one’s physical integrity, safeguarded not only by that provision but also by Article 3 of the Convention.

Consequently, the fair balance which had to be struck between the general interest and the interests of the individual had not been attained.

Conclusion : violation (six votes to one).

(b) Condition of a diagnosis of gender identity disorder (second applicant) – The applicant alleged that transgenderism was not an illness and that the fact of approaching sexual identities as though they arose from a psychological or medical condition was a factor in stigmatisation. This had also been the view expressed in a 2013 opinion issued by the Commission nationale consultative des droits de l’homme (National Advisory Commission on Human Rights, the CNCDH ).

(i) The State’s margin of appreciation – Although an important aspect of the identity of transgender persons was at stake in that the recognition of their sexual identity was involved, the following elements led the Court to conclude that the States Parties retained a wide margin of appreciation in deciding whether to impose the condition of a prior psychological diagnosis:

– there existed a virtually unanimous view on this point among the States Parties in which legal recognition of the sexual identity of transgender persons was possible;

– “transsexualism” was included in Chapter 5, on “mental and behaviours disorders”, in The International Classification of Diseases, published by the World Health Organisation (ICC-10; no. F64.0);

– in contrast to the sterility condition, the obligation to undergo a psychological diagnosis did not directly call into question an individual’s physical integrity;

– as a secondary consideration, it did not appear that the European and international actors for the promotion and defence of fundamental rights had taken such a strong position on this point as they had in respect of the sterility condition.

(ii) Weighing-up the competing interests – According to the Haute autorité française de la santé (French High Authority for Health) in 2009, the requirement that gender identity disorder be diagnosed was part of an approach known as “differential diagnosis”, and was intended to reassure doctors, prior to endocrinological or surgical treatment, that the patient’s suffering did not arise from other causes.

This particular requirement was thus intended to preserve the interests of the persons concerned by ensuring that they did not begin the process of changing their legal identity on erroneous grounds.

Furthermore, on this point the applicant’s interests partially overlapped with the general interest attached to preserving the principle of the inalienability of civil status, the reliability and coherence of the civil-status register, and judicial certainty, given that this requirement also helped to ensure the stability of changes to the entry on sex in the civil-status register.

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.

Conclusion : no violation (unanimously).

(c) The obligation to undergo a medical examination (first applicant) – The applicant, who had chosen to undergo gender reassignment surgery abroad, argued before the domestic court that he thus fulfilled the conditions laid down in the substantive law for obtaining a change in civil status. The contested expert report, which was intended to verify whether this allegation was correct, had been ordered by a judge as part of the process of obtaining evidence, an area in which the Court afforded the States Parties very wide discretion.

There was nothing to indicate that the decision had been arbitrary. The Code of Civil Procedure granted the courts unfettered discretion in ordering any investigative measures, including medical reports, where they did not have sufficient evidence before them to reach a decision. The court had indicated the precise reasons for which it considered the submitted evidence to be insufficient; as a result, it had appointed experts from three different but complementary specialisations, who had been entrusted with a very specific task.

It followed that even if the medical report in question implied a genital examination, the scope of the interference was worth putting into perspective. In retaining the impugned ground for dismissing the applicant’s request, the State had maintained a fair balance between the competing interests.

Conclusion : no violation (unanimously).

Article 41: finding of a violation sufficient in itself in respect of non-pecuniary damage.

(See also the Factsheet on Gender identity )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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