Communicated on 5 May 2017

FOURTH SECTION

Application no. 40296/16 P. against Ukraine lodged on 6 July 2016

STATEMENT OF FACTS

1. The applicant is an intersex person registered as male, but identifying herself as female. Respecting her self-identification, the Court will refer to her gender as female.

2. The applicant is a Ukrainian national who was born in 1977 and lives in Kyiv. She is represented before the Court by Ms O.O. Guz , a lawyer practising in Kyiv.

3. The President decided that the applicant ’ s name should not be disclosed to the public (Rule 47 § 4 of the Rules of Court).

A. The circumstances of the case

4. The facts of the case, as submitted by the applicant, may be summarised as follows.

5. The applicant was registered as male at birth, but has always identified herself as female.

6. On 24 December 2012 the applicant underwent a karyotype analysis [1] in the Komisarenko Institute of Endocrinology and Metabolism of the National Academy of Medical Sciences of Ukraine. The analysis revealed that she had the following karyotype [2] : 94.5% – 47 ,XXY [3] , 5% – 48,XXXY [4] and 0.5% – 47,XXX [5] . She was diagnosed with Klinefelter syndrome (mosaic form), hypergonadotropic hypogonadism (diminished functional activity of the testes) and bilateral cryptorchidism (u ndescended testes) .

7. On an unspecified date thereafter the applicant was examined by an endocrinologist and genetics specialist who reiterated the earlier diagnoses. Furthermore, the applicant was diagnosed with azoospermia [6] . The doctor found that the applicant had an intersex constitution and female-type hair. She also had underdeveloped ( hypoplastic ) external genitalia of a male type. The ultrasound scan discovered that the applicant had a rudimentary uterus and an underdeveloped prostate. Furthermore, the echostructure of her left testis resembled the texture of an ovary. The final diagnosis, in addition to those established before (see above), was intersexualism .

8. Following an enquiry from the applicant, the details of which are not available to the Court, on 6 June 2013 a specialist from the Institute of Urology of the National Academy of Medical Sciences of Ukraine responded as follows:

“1. The diagnosis ‘ Klinefelter syndrome ’ is not an indication of intersexualism or hermaphrodism .

2. Medical assistance to persons with hermaphrodism is provided, as a rule, by pediatric surgeons, as that pathology is usually revealed at birth or during childhood.

3. Patients suffering from Klinefelter syndrome, as a rule, do not need gender re-assignment. If they identify themselves as female, they should address the gender-reassignment commission of the Public Health Ministry. Once a diagnosis of ‘ transsexualism ’ has been confirmed, they receive permission for gender reassignment.

4. The karyotype 47 ,XXX indicates being a female. The diagnosis ‘ Klinefelter syndrome ’ is impossible with such a karyotype.”

9. In July 2015 the applicant requested that the Obolonskyy District Civil Status Registration Office in Kyiv (hereinafter “the Registration Office”) confirm her status as female and adjust her name, patronymic and surname accordingly . She submitted that her biological gender was female, which did not correspond to the gender indicated in her identity documents.

10. On 24 July 2015 the Registration Office rejected her request for the absence of a medical certificate proving that she had undergone sex reassignment surgery.

11. On 19 August 2015 the applicant challenged that refusal before the Kyiv Circuit Administrative Court. She noted that the Rules “on changing, renewing or annulling the civil status registration records” provided for the possibility of changing one ’ s civil record, in particular, following sex reassignment surgery. Under the legislation in force, however, seeking the reassignment of one ’ s sex was possible only in cases of transsexualism. Accordingly, that rule was not applicable to her situation. The applicant drew the court ’ s attention to the particularities of her endocrine system and the genes defining her body and her appearance as a female rather than a male. She emphasised that legal recognition of her female identity would be her only chance to start a normal life, free from humiliation and embarrassment.

12. On 19 November 2015 the first-instance court found against the applicant. It noted that, indeed, the legislation provided for the civil status records of transsexual persons to be changed following sex reassignment surgery, but did not regulate the situation of intersex persons. However, the court held that it remained open for the applicant to apply for such a change under point 2.15.10 of the applicable rules, that is “in other particular cases, if that does not contradict the legislation in force” (see paragraph 19 below). In other words, the applicant could seek a judicial decision acknowledging that her gender had been erroneously defined as male at birth. Her identity documents could be subsequently adjusted on those grounds.

13. The applicant appealed. She maintained that her situation was special given that her biological features were a combination of both genders. She further argued that, although the legislation did not regulate for such a situation, it did not prohibit changing the civil records accordingly. The applicant emphasised that the desired change in her case would neither run contrary to the interests of society in general, nor infringe anybody ’ s rights and freedoms in particular.

14. On 19 January 2016 the Kyiv Administrative Court of Appeal upheld the first-instance court ’ s judgment and endorsed its reasoning.

15. On 17 February 2016 the Higher Administrative Court rejected the applicant ’ s request for leave to appeal on points of law.

B. Relevant domestic law and practice

1. Constitution of Ukraine (1996)

16. The relevant provision reads as follows:

Article 23.

“Every person has the right to free development of his personality, provided that the rights and freedoms of other persons are not violated thereby, and has duties to society in which free and comprehensive development of his personality shall be guaranteed.”

2. Civil Code (2003), as worded at the material time

17. The relevant extracts read as follows:

Article 28. Name of an individual.

“1. An individual acquires rights and obligations and exercises them under his/her name.

A name of a Ukrainian national comprises a surname, a given name and a patronymic ...

3. An individual receives his or her name in accordance with the law.”

Article 49. Civil status registration.

“ ...

3. An individual ’ s birth, origin, citizenship, marriage, divorce, change of name in cases provided for by law, as well as death, shall be registered with the State.

4. Registration of civil status shall be carried out in accordance with the law. ... ”

3. State Registration of Civil Status Act 2010

18. The relevant provisions read as follows:

Section 9. State registration of civil status

“1. State registration of civil status is carried out with a view to ensuring the exercise of an individual ’ s rights, and official recognition and confirmation by the State of the facts of an individual ’ s birth, origin, marriage, divorce, change of name and death. ...

5. The Ministry of Justice of Ukraine shall approve the rules on the State registration of civil status, as well as the rules on changing, renewing or annulling the civil status registration records.”

4. Rules “on changing, renewing or annulling the civil status registration records” approved by Order of the Ministry of Justice no. 96/5 of 12 January 2011 (as further amended)

19 . The relevant rules read as follows:

“2.13. A civil status record may be changed on the grounds of:

... 2.13.2. a ruling of an administrative court;

2.13.3. a conclusion of a [Registration Office] ...

2.13.12. It is also possible to change civil status records in other particular cases if that does not contradict the legislation in force. ...

2.15. A [Registration Office] shall issue a conclusion:

... 2.15.5. where a change of an individual ’ s surname, given name and patronymic is necessitated by the change of his/her gender; ...

2.15.10. in other particular cases, if that does not contradict the legislation in force.”

5. Order no. 60 of the Ministry of Public Health “on improvement of medical assistance for persons requiring gender reassignment (correction)” of 3 February 2011 (repealed with effect from 30 December 2016)

20. The Order provided for a cumbersome and restrictive procedure for gender reassignment, which included an established clinical diagnosis of “transsexualism”, a mandatory stay for at least one month in a psychiatric hospital, and irreversible sterilisation. The numerous counter-indications included “anatomic particularities complicating (or making impossible) the person ’ s adaptation to the desired gender (such as hermaphroditism and disorders in development of genitalia)”.

6. Order no. 1041 of the Ministry of Public Health “on establishing medico-biological and social-psychological indications for gender reassignment (correction), approval of the form of primary accounting documents and instructions on completing them” of 5 October 2016, enacted on 30 December 2016 (repealing Order no. 60 mentioned above)

21. The new Order is worded as follows:

“1. The psychiatric and behavioural disorder [described as] ‘ transsexualism ’ under the 10 th Edition of the International Classification of Diseases is a medico-biological indication for gender reassignment (correction).

2. Discomfort and distress caused by the discrepancy between an individual ’ s gender identity and the gender assigned to him/her at birth (and the inherent gender role and/or primary and secondary sex characters) are social-psychological indications for gender reassignment (correction).”

C. Relevant international material

22. On 24 June 2013 the Foreign Affairs Council of the European Union adopted “Guidelines to promote and protect the enjoyment of all human rights by lesbian, gay, bisexual, transgender and intersex (LGBTI) persons”. The relevant part of the guidelines read as follows:

“8. The EU is keenly aware that the promotion of human rights on grounds of sexual orientation and gender identity in many areas around the world, including within the EU, can lead to sensitive discussions. However, building on international standards and its own legislative framework, the EU is committed to advancing the human rights of LGBTI persons in a meaningful and respectful way. It will do so by taking into account the local realities in which human rights defenders need to advance their struggle.

... The term intersex covers bodily variations in regard to culturally established standards of maleness and femaleness, including variations at the level of chromosomes, gonads and genitals. ...

20. Appropriate identity documents are a pre-requisite to effective enjoyment of many human rights. Transgender persons who do not have identity documentation in their preferred gender may as a result be exposed to arbitrary treatment and discrimination at the hands of individuals and institutions. No provision is made in some countries for legal recognition of preferred gender. In other countries, the requirements for legal gender recognition may be excessive, such as requiring proof of sterility or infertility, gender reassignment surgery, hormonal treatment, a mental health diagnosis and/or having lived in the preferred gender for a specified time period (the so-called ‘ real-life experience ’ ).”

23. On 26 July 2013 the Office of the United Nations High Commissioner for Human Rights (OHCHR) launched “UN Free & Equal”, a global UN campaign for equal rights and the fair treatment of lesbian, gay, bi, trans (LGBT) and intersex people. The relevant parts of the factsheet “Intersex” prepared in the framework of the campaign read as follows:

“What does ‘ intersex ’ mean?

Intersex people are born with sex characteristics (including genitals, gonads and chromosome patterns) that do not fit typical binary notions of male or female bodies.

Intersex is an umbrella term used to describe a wide range of natural bodily variations. In some cases, intersex traits are visible at birth while in others, they are not apparent until puberty. Some chromosomal intersex variations may not be physically apparent at all.

According to experts, between 0.05% and 1.7% of the population is born with intersex traits – the upper estimate is similar to the number of red haired people.

Being intersex relates to biological sex characteristics, and is distinct from a person ’ s sexual orientation or gender identity. An intersex person may be straight, gay, lesbian, bisexual or asexual, and may identify as female, male, both or neither.

Because their bodies are seen as different, intersex children and adults are often stigmatized and subjected to multiple human rights violations, including violations of their rights to health and physical integrity, to be free from torture and ill-treatment, and to equality and non-discrimination. ...

Discrimination

Intersex persons are often subjected to discrimination and abuse if it becomes known that they are intersex, or if they are perceived not to conform to gender norms. Anti-discrimination laws do not typically ban discrimination against intersex persons, leaving them vulnerable to discriminatory practices in a range of settings, including access to health services, education, public services, employment and sports.

Health-care professionals often lack the needed training, knowledge and understanding to take into account the specific health needs of intersex persons, provide appropriate healthcare, and respect the autonomy and rights of intersex persons to physical integrity and health.

Some intersex people also face barriers and discrimination if they wish to or need to amend sex markers on birth certificates and official documents. ...

Protection and Remedy

... Intersex people should also be consulted in the development of legislation and policies that impact on their rights.

Action points

States:

... » Enact laws to provide for facilitated procedures to amend sex markers on the birth certificates and official documents of intersex people.

» Provide health care personnel with training on the health needs and human rights of intersex people and the appropriate advice and care to give to parents and intersex children, being respectful of the intersex person ’ s autonomy, physical integrity and sex characteristics.

» Ensure that members of the judiciary, immigration officers, law enforcement, healthcare, education and other officials and personnel are trained to respect and provide equal treatment to intersex persons.

» Ensure that intersex people and organizations are consulted and participate in the development of research, legislation and policies that impact on their rights. ... ”

24. On 9 May 2014 the Commissioner for Human Rights of the Council of Europe published a Human Rights Comment “ A boy or a girl or a person – intersex people lack recognition in Europe”, in which he stated, in particular:

“I urge governments in Europe to review their current legislation and medical practices to identify gaps in the protection of intersex people and take measures to address the problems. Policy makers should involve civil society advocates of intersex persons such as the OII Europe and ILGA-Europe in these efforts. The enjoyment of human rights is universal and it cannot depend on the sex of the person. Intersex individuals must be granted full legal recognition from birth and amendments to their sex or gender classification should be facilitated to reflect their individual choices.”

25. On 4 May 2015 the Office of the UN High Commissioner for Human Rights issued a report entitled “Discrimination and violence against individuals based on their sexual orientation and gender identity” (A/HRC/29/23). The relevant extracts read as follows:

“76. The present study is the second on violence and discrimination based on sexual orientation and gender identity requested by the Human Rights Council. While some progress has been made since the first study in 2011, the overall picture remains one of continuing, pervasive, violent abuse, harassment and discrimination affecting LGBT and intersex persons in all regions. These constitute serious human rights violations, often perpetrated with impunity, indicating that current arrangements to protect the human rights of LGBT and intersex persons are inadequate. There is as yet no dedicated human rights mechanism at the international level that has a systematic and comprehensive approach to the human rights situation of LGBT and intersex persons.

77. The recommendations below describe measures to protect individuals from the kinds of human rights violations documented above. They draw from good practices observed in the course of compiling the report and recommendations of United Nations human rights mechanisms. ...

79. States should address discrimination by:

( i ) Issuing legal identity documents, upon request, that reflect preferred gender, eliminating abusive preconditions, such as sterilization, forced treatment and divorce; ... ”

26. A research paper by the Council of Europe Commissioner for Human Rights “Human rights and intersex people” that was published in April 2015 and re-edited in September 2015, reads as follows in the relevant parts (with the footnotes omitted):

“The Commissioner ’ s recommendations

4. Member states should facilitate the recognition of intersex individuals before the law through the expeditious provision of birth certificates, civil registration documents, identity papers, passports and other official personal documentation while respecting intersex persons ’ right to self-determination. Flexible procedures should be observed in assigning and reassigning sex/gender in official documents while also providing for the possibility of not choosing a specified male or female gender marker. Member states should consider the proportionality of requiring gender markers in official documents. ...

1.1. Understanding intersex people

It is important to note the distinction between intersex and trans people:

Intersex individuals are persons who cannot be classified according to the medical norms of so-called male and female bodies with regard to their chromosomal, gonadal or anatomical sex. The latter becomes evident, for example, in secondary sex characteristics such as muscle mass, hair distribution and stature, or primary sex characteristics such as the inner and outer genitalia and/or the chromosomal and hormonal structure. ...

In essence, as a result of surgeries or other sex-altering medical interventions, intersex people are denied their right to physical integrity as well as their ability to develop their own gender identity, as an a priori choice is made for them. ...

The invisibility of intersex people in society is another serious problem. Their life experience is often shrouded in secrecy and shame, also as a result of their frequently being unaware of the surgeries or treatments that were performed on them early on in their life. Access to medical records is often rendered very difficult, as is access to personal history, including childhood pictures and other memories. Intersex individuals who are discovered later on in life may experience the same invasive treatment – without their free and informed consent – as intersex individuals who are identified during childhood.

A strong fear of stigmatisation and social exclusion forces most intersex people to stay ‘ in the closet ’ , even when they become aware of their sex. Moreover, society remains largely ignorant about the existence of intersex people since hardly any information is made available to the public about the matter. Consequently, for many years, the human rights problems affecting intersex people ’ s well-being were either unknown or ignored. Awareness about their suffering has only recently risen to the fore in a number of human rights fora, and is yet to be recognised by the wider human rights community as a pressing concern. ...

1.2. Diversity of intersex people

It is important not to lump all intersex people into one new collective category, such as a ‘ third sex ’ , perhaps running in parallel to female and male. Such a classification would be incorrect due to the great diversity among intersex people and the fact that many intersex individuals do identify as women or men, while others identify as both or neither. In effect, intersex is an umbrella term including people with ‘ variations in sex characteristics ’ , rather than a type per se. This diversity is not unique to intersex people, as – unsurprisingly – a range of variations in sexual anatomy is also found in women and men that meet the medical norms of their respective categories.

The term ‘ hermaphrodite ’ was widely used by medical practitioners during the 18 th and 19th centuries before ‘ intersex ’ was coined as a scientific and medical term in the early 20th century. Before the current medical classification of the disorder of sex development (DSD) was developed, variations in intersex sex characteristics were classified under different categories, the most common being: congenital adrenal hyperplasia (CAH), androgen insensitivity syndrome (AIS), gonadal dysgenesis , hypospadias, and unusual chromosome compositions such as XXY ( Klinefelter Syndrome) or XO (Turner Syndrome). The so-called “true hermaphrodites” referred to those who had a combination of ovaries and testes. ...

1.3. Current knowledge base

Several gaps remain with regard to the human rights knowledge base on intersex issues. To date there is little information about the legal and social situation of intersex people in many European countries and around the world. It is thus not surprising that the first resolution inclusive of intersex issues, adopted within the Council of Europe setting, called on member states to: ‘ undertake further research to increase knowledge about the specific situation of intersex people ’ .

... one ’ s gender does not necessarily develop in conformity with one ’ s assigned sex. In the case of intersex people, estimates of assigning the wrong sex to them vary between 8.5% and 40%. These children end up rejecting the sex they were assigned at birth demonstrating the major infringements of their psychological integrity. ...

4.2. Flexibility in assigning and reassigning legal sex/gender

... In its 2012 Opinion, [the Swiss National Advisory Commission on Biomedical Ethics – NEK-CNE] was more sympathetic to the complainants ’ demand and people who cannot fit into the sex/gender binary. Indeed, NEK-CNE believes that parents should not be subjected to pressure in the assignment of their child ’ s sex, and recommended a review of current binary assignments of sex of those who are not clearly identifiable as female or male, proposing three options:

- the broadening of current categories, either through a third option such as ‘ other ’ or the introduction of two further categories based on the binary classification, yet indicating uncertainty e.g. ‘ female * ’ or ‘ male * ’ ;

- the revision of the ordinance regulating civil status to remove the indication of sex altogether; or

- the retention of the current binary categories, while introducing flexibility and simplification of the procedure to amend the sex recorded on the civil status register.

Of the three options, NEK-CNE favours the third as, on the one hand the ‘ present binary classification system ... is deeply embedded socio-culturally ’ , while simplified amendments ‘ would offer the advantage of sparing (already overstrained) parents, or the person of ambiguous sex, the need for court proceedings ’ relying on the individual ’ s self-identified gender.

This opinion matches the demands of the Intersex Forum ’ s Public Statement of 2013 which call for:

- ‘ intersex children [to be registered] as females or males, with the awareness that, like all people, they may grow up to identify with a different sex or gender ’ ; and

- ‘ sex or gender classifications [to be] amendable through a simple administrative procedure at the request of the individuals concerned. All adults and capable minors should be able to choose between female (F), male (M), non-binary or multiple options ’ with the prospect that in the future such entries on birth certificates or identification documents will become superfluous.

The 2012 Argentinean Law Establishing a Right to Gender Identity of the Person represented a fundamental shift in international best practice regarding gender recognition based on human rights principles. While it does not go beyond the female/male dichotomy, which may be a pitfall regarding cases of non-binary genders, it is still very useful as a legal model for the recognition of intersex people who identify as ‘ F ’ or ‘ M ’ irrespective of the sex they were assigned at birth. The law provides all people with the right to recognition of their gender identity, including the ability to ‘ request that the recorded sex be amended, along with changes in first name and image, whenever they do not agree with the self-perceived gender identity ’ . Furthermore the law clearly states that ‘ [ i ]n no case will it be needed to prove that a surgical procedure for total or partial genital reassignment, hormonal therapies or any other psychological or medical treatment has taken place ’ for a change in the legal sex/gender to be effected; at the same time, it empowers ‘ [a] ll persons ... with the aim of ensuring the holistic enjoyment of their health ’ and allows ‘ access [to] total and partial surgical interventions and/or comprehensive hormonal treatments to adjust their bodies, including their genitalia, to their self-perceived gender identity, without requiring any judicial or administrative authorisation . ’

In 2014, Denmark became the first European country to adopt a gender identity law based on the same self-determination principle whereby an individual above the age of 18 may obtain a change in legal sex on the basis of her/his gender declaration, without the need for verification by a third party.

Interesting legal proposals have been tabled in Luxembourg and adopted in Malta to enable parents to omit reference to the sex of the child on birth certificates. In Luxembourg, Draft Bill No. 6568 on Reform of Filiation will allow for the leaving out of the sex/gender marker of a child on childbirth certificates: ‘ The bill includes changes on granting legal recognition for intersex or transsexual individuals and that could guarantee equality of all individuals, regardless of biological sex, gender identity and gender expression. ’ Similarly, the Maltese bill entitled the Gender Identity, Gender Expression and Sex Characteristics Act which entered into force in April 2015 allows parents or guardians to postpone the inclusion of a sex marker on the birth certificate until the child ’ s gender identity is determined. The bill also allows for changes to the sex/gender marker to align it with one ’ s gender identity at any point in one ’ s life following a simple administrative procedure.”

CO MPLAINTS

The applicant complains under Article 8 of the Convention of the absence of any procedure in Ukraine for changing gender and name records for intersex persons such as her.

She also complains under Article 13 of the absence of an effective domestic remedy in respect of the above complaint.

Lastly, the applicant complains under Article 14, in conjunction with Article 8 of the Convention, that by refusing to identify her as female in her identity documents, the State was discriminating against her on account of her being an intersex person.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for her private life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

2. In the alternative, has there been a failure by the respondent State to comply with the positive obligation under Article 8 to protect the applicant ’ s right to respect for her private life?

3. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 8, as required by Article 13 of the Convention?

4 . Has the applicant suffered discrimination in the enjoyment of her Convention rights on account of being an intersex person, contrary to Article 14 of the Convention read in conjunction with Article 8?

The Government are requested, in accordance with Rule 33 of the Rules of Court, to treat the case-file material as confidential.

[1] 1. A test to identify and evaluate the size, shape, and number of chromosomes in a sample of body cells .

[2] 2. The standard human karyotypes contain 22 pairs of autosomal chromosomes and one pair of sex chromosomes ( allosomes ). Standard karyotypes for females contain two X chromosomes and are denoted 46 ,XX ; males have both an X and a Y chromosome denoted 46,XY. Although rarely, but variations occur.

[3] 3. An unusual chromosome configuration referred to as Klinefelter syndrome . It is found in about one out of every 500-1,000 newborn males . The primary feature is sterility . Often symptoms may be subtle and many people do not reali s e they are affected. Sometimes symptoms are more prominent and may include weaker muscles, greater height, poor coordination, less body hair, smaller genitals and breast growth. Often it is only at puberty that these symptoms are noticed .

[4] 1. A type of chromosome abnormality in males , sometimes referred to as a variant of Klinefelter syndrome, but more severe . It is estimated that this condition affects one in every 50,000 male births .

[5] 2. A rare chromosome variation affecting females. It occurs in about 1 in 1,000 newborn girls. Although females with this condition may be taller than average, this chromosomal change typically causes no unusual physical features.

[6] 3. A bsence of sperm in the semen .