DISSENTING OPINION OF JUDGE RANZONI

(Translation)

1. My disagreement with the majority of the Chamber concerns the finding of a violation of Article 8 of the Convention in respect of the second and third applicants (applications nos. 52471/13 and 52596/13) on account of the obligation to establish the irreversible nature of the change in appearance. Accordingly, I also voted against the finding that, as regards these two applications, there was no need to examine separately the complaint under Article 14 of the Convention read in conjunction with Article 8.

2. On 17 March 2009 the second applicant requested that his birth certificate be corrected in order to have the indication of his gender changed from “male” to “female” and to have his male forename replaced by a female forename. His request was refused, in particular because he had not demonstrated the irreversible nature of the gender reassignment process, which was a requirement under domestic law as in force at that time. In a judgment of 13 February 2013 the Court of Cassation dismissed his appeal on points of law, finding that this requirement was not discriminatory and did not infringe the principles laid down under Articles 8 and 14 of the Convention (see paragraphs 32 to 40 of the judgment).

3. On 13 June 2009 the third applicant lodged a request for correction of his birth certificate, similar to that of the second applicant. This request too was refused, on the grounds that the applicant had not demonstrated with certainty that he had undergone the medical and surgical treatment necessary in order to complete the process of gender reassignment. The Court of Cassation examined the third applicant’s appeal at the same time as that of the second applicant and arrived at the same conclusion (see paragraphs 41-52 of the judgment).

4. In two judgments delivered on 7 June 2012 the Court of Cassation held that, in order to substantiate a request to have the indication of gender on a birth certificate corrected, the person concerned had to demonstrate, in view of the widely accepted position within the scientific community, that he or she actually suffered from the gender identity disorder in question and that the change in his or her appearance was irreversible (see paragraph 58 of the judgment). It is this second requirement which, in the view of the majority of the Chamber, constituted a failure on the part of the respondent State to comply with its positive obligation to secure the applicants’ right to respect for their private lives (see paragraph 135 of the judgment).

5. I do not dispute the fact that at the material time French positive law made recognition of the gender identity of transgender persons conditional on sterilisation surgery or on treatment which, on account of its nature and intensity, entailed a very high probability of sterility (see paragraph 120 of the judgment). I can also subscribe without any hesitation to the majority’s assessment that this case concerns an essential aspect of individuals’ intimate identity, since the right to gender identity and personal development is a fundamental aspect of the right to respect for private life under Article 8 of the Convention (see, in particular, paragraph 123 of the judgment). Moreover, such medical treatments and operations go to the physical integrity of the individuals concerned. However, neither the second nor the third applicant relied on Article 3 of the Convention (see paragraph 128 of the judgment).

6. I can also accept that, in the search for a fair balance between the general interest and the interests of the applicants (see paragraphs 126 to 135 of the judgment), there are strong arguments in favour of finding that the obligation to undergo sterilisation surgery or treatment in order to have one’s gender identity recognised disrupts this fair balance and amounts to a violation of Article 8 of the Convention. Nevertheless, there are also weighty arguments which tilt the balance in favour of the margin of appreciation of the respondent State, and thus in favour of finding that there has been no violation of Article 8.

7. In October 2016 the situation regarding the legal recognition of the gender identity of transgender persons in the Council of Europe member States was as follows (see paragraphs 70-71 of the judgment). In seven member States recognition was not possible; in twenty-two member States it was possible, but was subject to legal requirements including the disputed condition of sterilisation of the person concerned; and in “only” eighteen member States, sterilisation was no longer required by law for recognition of the gender identity of transgender persons.

8. Furthermore, this development is a recent one in those eighteen member States, a fact that emerges very clearly from the majority judgment. Of the countries concerned, eleven abolished sterilisation as a condition for legal recognition between February 2009 and October 2016 (see paragraph 71 of the judgment). This means that, for example, at the time of the first ‑ instance judgments in the cases of the second and third applicants, on 9 February and 13 March 2009 respectively (see paragraphs 37 and 48 of the judgment), only eight member States did not require sterilisation. By the time of the Court of Cassation judgments of 13 February 2013 (see paragraphs 40 and 52 of the judgment), legal recognition of the identity of transgender persons was possible, without sterilisation being a legal requirement, in only eleven member States.

9. As the Chamber reiterates (see paragraph 121 of the judgment), in implementing their positive obligations under Article 8 of the Convention the member States enjoy a certain margin of appreciation. A number of factors must be taken into account when determining the breadth of that margin. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted. Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider. There will also usually be a wide margin if the State is required to strike a balance between competing private and public interests (see Hämäläinen v. Finland [GC], no. 37359/09, § 67, ECHR 2014, with further references).

10. In the present case, at the time of the impugned judgments, which were delivered by the Court of Cassation on 13 February 2013, no consensus existed among the member States on the issue of requiring sterilisation as a prior condition for the legal recognition of transgender identity. Only eleven of the forty-seven member States did not require such a condition. At present – more specifically in October 2016 – such recognition is possible, without sterilisation being required by law, in only eighteen of the forty-seven member States. This is by no means a majority of the member States, still less does it represent a European consensus, which is still a long way off.

11. In the absence of consensus and in view of the fact that the present case undoubtedly raises sensitive moral and ethical issues, the margin of appreciation to be left to the respondent State remains wide (see Hämälainen , cited above, § 75, and X, Y and Z v. the United Kingdom , 22 April 1997, § 44, Reports of Judgments and Decisions 1997-II). However, this margin vanishes in the analysis conducted by the majority in paragraphs 121 to 135 of the judgment. How can this be? Of course, the finding that an essential aspect of individuals’ intimate identity is at stake may reduce the margin of appreciation (see paragraph 123 of the judgment), but not completely. What other factors prompted the majority to disregard entirely the margin of appreciation and also the fact that, to date, only a minority of the member States have abolished the sterility requirement?

12. In this regard the judgment highlights the existence of a “trend” towards the abolition of this requirement (see paragraph 124). I acknowledge that there exists a certain trend in Europe, but it is, as demonstrated above, only recent. Is this sufficient justification for narrowing considerably the margin of appreciation, which is in principle a wide one? I doubt it. Societies are moving only gradually towards abolishing sterilisation as a prerequisite for legal recognition of the gender identity of transgender persons.

13. I am conscious of the fact that the Court observed in Y.Y. v. Turkey (no. 14793/08, § 108, ECHR 2015), referring to the judgment in Christine Goodwin v. the United Kingdom ([GC], no. 28957/95, § 85, ECHR 2002 ‑ VI), “that it attache[d] less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed than to the existence of clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transgender persons but of legal recognition of the new gender identity of post-operative transgender persons”. However, these two cases concerned other issues, namely legal recognition of a process of gender reassignment that had already been completed ( Christine Goodwin ), and the possibility for a transgender person to undergo gender reassignment without being subject to a requirement to be unable to procreate ( Y.Y. v. Turkey ). It must be pointed out that the Court noted in Christine Goodwin that it was for the Contracting State to determine, inter alia , the conditions under which a person claiming legal recognition as a transsexual established that gender reassignment had been properly effected (see Christine Goodwin , cited above, § 103). Furthermore, in Y.Y. v. Turkey , the comparative survey of the legislation of thirty-two member States carried out by the Court had shown that the option for transgender persons to undergo gender reassignment treatment already existed in twenty-four of the thirty-two member States, in other words in the majority of the countries surveyed. It appears that none of these States made treatment conditional on an inability to procreate (see Y.Y. v. Turkey , cited above, §§ 35-39). In other words, this was more than a mere trend: a clear majority of the States did not impose conditions similar to those laid down by the respondent State in that case.

14. There is also a need to examine and determine the question whether there are substantial and valid grounds capable of justifying the requirement to be unable to procreate and the retention of the corresponding systems in the majority of the member States (a question asked, for instance, by Judge Lemmens in his separate opinion annexed to the judgment in Y.Y. v. Turkey , cited above). In the present case, unfortunately, the Court did not answer this question, but simply stated that the trend referred to above was “driven by developments in the understanding of transgenderism” (see paragraph 124 of the judgment). This strikes me as a somewhat bold assumption, which is not backed up by any references in the judgment. In view of the facts as established in this case, the Court is unaware of the precise reasons for these developments, just as it is unaware of the reasons that have prompted most of the member States to retain to date this prior condition for legal recognition of the gender identity of transgender persons.

15. As regards the margin of appreciation, the majority note that “numerous European and international institutional actors in the human rights field have adopted a very clear position in favour of abolishing the sterility requirement” (see paragraph 125 of the judgment). To my mind, this argument is insufficient to justify the application of a very narrow margin of appreciation or the finding that there is a clear European trend. It is true that the Commissioner for Human Rights of the Council of Europe adopted a stance in 2009 against making legal recognition of transgender identity subject to irreversible sterilisation surgery (see paragraph 73 of the judgment), and that the Parliamentary Assembly noted in a 2013 Resolution that “[n]either forced nor coerced sterilisations or castrations can be legitimated in any way in the 21st century” (see paragraph 76 of the judgment). However, I note, while acknowledging the great importance of the institutions and organisations listed in paragraph 125 of the judgment, that they are for the most part involved in the “promotion” of human rights. The majority’s assessment is not based on European or international human rights “protection” institutions, or on binding international conventions or settled case-law within the member States.

16. While it is true that an essential aspect of individuals’ intimate identity is in issue, it is arguable, in the absence of consensus at European level, that the member States’ margin of appreciation remains wide, especially since a highly sensitive issue is at stake. For that reason it could also be argued that a Contracting State – in this instance, France – should not be criticised in 2017 for having given priority between 2009 and 2013 to the requirement to demonstrate the irreversible nature of the change in appearance. In a context where standards were evolving, but where the trend was even less clear than it is today, the respondent State took the view that this arrangement was the most fitting at the time, a position still taken by the majority of member States. Had it adopted this point of view, the Court could have found that the respondent State, during the period when the decisions were given, had not overstepped its margin of appreciation or, accordingly, breached Article 8 of the Convention. It could nevertheless have called on the (other) member States to continue to monitor the issue giving rise to the present case and to pursue their efforts in the direction of the trend that had been demonstrated.

17. By contrast, the finding of a violation of Article 8 of the Convention in the present case actually has the effect of requiring twenty-two member States, in order to avoid future violations of this provision, to amend their legislation and abolish the sterilisation requirement as a condition for legal recognition of transgender identity, to say nothing of the seven member States in which legal recognition of such identity is currently not possible.

18. In cases of this type the Court has been cautious where there is no European consensus, and has advanced by means of little steps. The case ‑ law on transgender issues is proof of that.

For instance, in the case of Rees v. the United Kingdom (17 October 1986, Series A no. 106), the law in the United Kingdom did not grant transsexuals a legal status corresponding to their actual situation. The Court held that there had been no violation of Article 8, finding that “there is at present little common ground between the Contracting States in this area and that, generally speaking, the law appears to be in a transitional stage”. Consequently, it considered that “this is an area in which the Contracting Parties enjoy a wide margin of appreciation” (§ 37). It specified that “[t]he need for appropriate legal measures should ... be kept under review having regard particularly to scientific and societal developments” (§ 47).

In Cossey v. the United Kingdom (27 September 1990, Series A no. 184), the Court reached a similar conclusion, and also noted that an annotation to the entry in the register of births would not be an appropriate solution.

In the case of B. v. France (25 March 1992, Series A no. 232 ‑ C), the Court found a violation of Article 8 for the first time in a case concerning the recognition of transsexual persons, taking into consideration the factors that distinguished that case from the cases of Rees and Cossey .

In X, Y and Z v. the United Kingdom (cited above) and Sheffield and Horsham v. the United Kingdom (30 July 1998, Reports 1998 ‑ V), the Court did not depart from its judgments in Rees and Cossey . It did not consider it necessary to “conclude that on the basis of scientific and legal developments alone the respondent State can no longer rely on a margin of appreciation to defend its continuing refusal to recognise in law a transsexual’s post ‑ operative gender”, finding that “it continues to be the case that transsexualism raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States” ( Sheffield and Horsham , § 58).

In its judgment in Christine Goodwin (cited above) the Grand Chamber of the Court found, sixteen years after the Rees judgment, that there had been a violation of Article 8 in view of an international trend in favour of increased social acceptance of transsexuals and of legal recognition of the new sexual identity of post-operative transsexuals, “[s]ince 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” (§ 93). Nevertheless, the Court reaffirmed that it was for the Contracting State to determine, inter alia , the conditions of that recognition (see paragraph 13 above).

After Christine Goodwin , the Court delivered several judgments in Article 8 cases which also dealt with the legal recognition of the gender identity of transgender persons who had undergone reassignment surgery, and with other consequences arising for these persons from their situation (see, for example, Van Kück v. Germany , no. 35968/97, ECHR 2003 ‑ VII (violation); Grant v. the United Kingdom , no. 32570/03, ECHR 2006 ‑ VII (violation); L. v. Lithuania , no. 27527/03, ECHR 2007 ‑ IV (no violation); Schlumpf v. Switzerland , no. 29002/06, 8 January 2009 (violation); P.V. v. Spain , no. 35159/09, 30 November 2010 (no violation); P. v. Portugal (dec.), no. 56027/09, ECHR 2011 (struck out of the list); Cassar v. Malta , no. 36982/11, 9 July 2013 (struck out of the list); and Hämäläinen , cited above (no violation).

The case of Y.Y. v. Turkey (cited above) concerned the authorities’ refusal to allow a transgender person to undergo gender reassignment on the grounds that the person concerned was not permanently unable to procreate. This was the first time, to my knowledge, that the Court had ruled on this requirement, albeit in a different context to the present case. It found a violation of Article 8, but taking into consideration the fact that a clear majority of the member States did not impose similar conditions to those laid down by the respondent State (see paragraph 13 above).

19. Between the Rees judgment in 1986 and the case of Y.Y. in 2015, the Court constantly elaborated upon its case-law in this field, but did so cautiously, “little by little”, or, to put it another way, “step by step”. However, with the present judgment the Court has not taken a mere step but a whole leap, and, what is more, on a highly sensitive subject, a new aspect of transsexualism – or, more accurately, transgenderism – in the absence of consensus among the member States on this specific aspect, and in awareness of the breadth of the margin of appreciation resulting from all these factors.

20. I confess that I found it difficult to make a decision in this very difficult and sensitive case. As I already stated in paragraph 6 above, there are weighty arguments to support the conclusion that the obligation to undergo sterilisation surgery or treatment in order to have one’s gender identity recognised disrupts the fair balance to be struck between the general interest and the interests of the applicants, and therefore amounts to a violation of Article 8 of the Convention. However, the majority also accepted, quite rightly, “that safeguarding the principle of the inalienability of civil status, ensuring the reliability and consistency of civil-status records and, more generally, ensuring legal certainty, are in the general interest”. They nevertheless considered that the balance was tipped in favour of the interests of the persons concerned (see paragraph 132 of the judgment). Admittedly, such an assessment is not without some foundation.

21. On the other hand, there is far from being a European consensus on this requirement, and the minority of member States which had abolished it was even smaller at the time. These considerations made me hesitate. My hesitation grew in view of the arguments advanced by the majority concerning the member States’ margin of appreciation and the European and international “trends”, arguments which, to my mind, are not wholly persuasive. Nor do I consider it appropriate to refer to Article 3 of the Convention in order to strengthen the argument (see paragraphs 127 and 131 of the judgment), since the second and third applicants had not relied on that provision.

22. Furthermore, the observation made in paragraph 134 of the judgment concerning the fact that the French legislature, on 12 October 2016, expressly excluded sterilisation from the conditions to be met by transgender persons in order to obtain recognition of their identity, strikes me as a problematic argument, as the principles established in our judgment will apply not only to the respondent State but also to the other member States.

23. I wonder what the Chamber would have concluded if, instead of amending the legislation a few months before our judgment, the French legislature had maintained the condition of an irreversible change in appearance. Would it still have found that the respondent State had overstepped its margin of appreciation in choosing that legislative option?

24. In view of all these considerations, and bearing in mind the importance and consequences of a Court judgment on this subject, I would have preferred to see the Chamber relinquish jurisdiction in favour of the Grand Chamber under Article 30 of the Convention. The conditions for relinquishment would have been met, as the case raised serious questions affecting the interpretation and application of Article 8 of the Convention and the concepts of “margin of appreciation” and “consensus”. The implications of this judgment for all the member States therefore warranted invoking the authority of the Grand Chamber. I regret the fact that the majority did not adopt this approach.

25. After reflecting as outlined above, I decided in favour of the margin of appreciation allowed to the respondent State in fulfilling its positive obligation to secure the right of the second and third applicants to respect for their private lives in relation to a highly sensitive subject which raises very tricky issues and where no European consensus exists. Accordingly, I voted against finding a violation of Article 8 of the Convention on this account.

...