CONCURRING OPINION OF JUDGE LEMMENS, JOINED BY JUDGE KŪRIS

(Translation)

1. I am in full agreement with my colleagues that there has been a violation of Article 8 of the Convention. The judgment highlights once again the importance of the right to gender identity as a component of the right to respect for private life for transgender persons.

However, I would like to make clear how I interpret the scope of the judgment.

2. The applicant complained of the application in his case of Article 40 of the Turkish Civil Code.

Article 40 contains two paragraphs ... The first concerns gender reassignment, making it subject to a number of conditions, including a permanent inability to procreate. The second paragraph relates to the rectification of the civil-status register following a change of gender, that is to say, the legal recognition of the individual ’ s new gender. The process leading to recognition of the person ’ s new gender comprises two stages, and at each stage the involvement of the courts is required: first in order to authorise the gender reassignment (first paragraph) and then to recognise the legal effects of reassignment once it has actually taken place (second paragraph).

3. The judgment relates only to the first stage. It examines the Convention compatibility of making a permanent inability to procreate a prior condition for gender reassignment surgery . The judgment finds that this condition cannot be considered “necessary” in order to achieve the aims relied on by the Government in this context.

I would like to draw attention to the Court ’ s assertion that it “ fails to see how, other than by undergoing a sterilisation operation, the applicant could have complied with the requirement of permanent infertility given that, in biological terms, he had the ability to procreate” (see paragraph 118 of the judgment). While it was impossible for the applicant to comply with that condition, I would point out that other persons could do so. Women who wish to undergo gender reassignment may obtain authorisation to have such surgery performed if they are no longer fertile or have never been fertile. Apparently, it is with this category of women in mind that the legislature makes provision for gender reassignment. A woman who is fertile, on the other hand, may not relinquish the physical characteristics of a woman, including the ability to procreate, in order to undergo gender reassignment.

3. The judgment does not address the issue of the Convention compatibility of requiring a permanent inability to procreate as a prior condition for the legal recognition of a change of gender , in particular for persons who have undergone gender reassignment surgery.

Needless to say, there are arguments in favour of finding that the condition referred to above also raises an issue from this point of view. I would refer to the concurring opinion of my colleagues Judge Keller and Judge Spano.

However, I believe that the Court was right not to rule on the condition in question in this broader context. Not just because that issue was not submitted to it, but also because there is insufficient evidence in the file to enable it to rule in full knowledge of the facts. The reasons relied on by the Government to justify making gender reassignment contingent on a permanent inability to procreate (see in particular the legitimate aims referred to in paragraphs 74-75 and 77 of the judgment) are not necessarily the same reasons that a State might rely on to justify imposing the same requirement as a condition for legal recognition of a change of gender.

While there is a clear trend among States towards granting legal recognition of the new gender of transgender persons without requiring a permanent inability to procreate as a prior condition, I am struck by the fact that many States still have such a requirement in their legislation ... I would be curious to know what reasons they might rely on to justify such a system. Those reasons may or may not be sufficient: I simply do not know.

For this reason in particular I am of the view that this judgment cannot be interpreted as precluding definitively a requirement for individuals to be permanently unable to procreate in the context of gender reassignment. The Court will have to await another opportunity to examine this issue in greater depth.

[1] In Turkey, women’s identity cards are pink and men’s are blue.

[2] Judgment of the Ä° zmir District Court of 17 December 2003 (E. 2002/979 and K. 2003/102) and Court of Cassation judgment of 18 June 2003 (E. 2003/7323 and K. 2003/906).

[3] With particular reference to women of Roma origin or women with disabilities, see World Health Organization, “ Eliminating forced, coercive and otherwise involuntary sterilization: An interagency statement”, OHCHR, UN Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO, 2014, pp. 4-7; Commissioner for Human Rights of the Council of Europe, “Human rights of Roma and Travellers in Europe”, 2012; Commissioner for Human Rights of the Council of Europe, “Recommendation concerning certain aspects of law and practice relating to sterili s ation of women in the Slovak Republic”, 2003; and the 2008 r eport of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak (A/63/175), § 60, and the references cited therein .

[4] Human Rights Committee, “ Concluding observations on the seventh periodic report of Ukraine ”, adopted on 23 July 2013, CCPR/C/UKR/CO/7, § 10: “The Committee is … concerned at reports that according to Ministry of Health order No. 60 of 3 February 2011 ‘ On the improvement of medical care to persons requiring a change (correction) of sex ’ , transgender persons are required to undergo compulsory confinement in a psychiatric institution for a period up to 45 days and mandatory corrective surgery in the manner prescribed by the responsible Commission as a prerequisite for legal recognition of their gender ”.

[5] “ The State party should also amend order No. 60 and other laws and regulations with a view to ensuring that: (1) the compulsory confinement of persons requiring a change (correction) of sex in a psychiatric institution for up to 45 days is replaced by a less invasive measure; (2) any medical treatment should be provided in the best interests of the individual with his/her consent, should be limited to those medical procedures that are strictly necessary, and should be adapted to his/her own wishes, specific medical needs and situation; (3) any abusive or disproportionate requirements for legal recognition of a gender reassignment are repealed ” (ibid.).

[6] Juan E. Méndez, r eport of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment , 2013, A/HRC/22/53, §§ 38, 78 and 79; see also Commissioner for Human Rights of the Council of Europe, “Human rights and gender identity”, issue paper (2009), pp. 19 et seq.

[7] World Health Organization, “Eliminating forced, coercive and otherwise involuntary sterilization: An interagency statement”, HCHR, UN Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO, 2014 .

[8] Austrian Constitutional Court, B 1973/08-13, 3 December 2009, § 3, pp. 8-9.

[9] German Constitutional Court, 1 BvR 3295/07, 11 January 2011.

[10] German Constitutional Court, 1 BvR 3295/07, 11 January 2011, § 68.

[11] German Constitutional Court, 1 BvR 3295/07, 11 January 2011, § 6 9.

[12] Kammarrätten i Stockholm, Avdelning 03 (Stockholm Administrative Court of Appeal, Division 03), no. 1968-12, 12 December 2012.

[13] The Administrative Court of Appeal also ruled that the law was discriminatory as it related only to transgender persons.

[14] Legal opinion of the Federal Civil-Status Office of 1 February 2012 on transgender issues, p. 8.

[15] See the references cited by L. Nixon, “The Right to (Trans) Parent”, 20 Wm. & Mary Journal of Women and Law 73 (2013), p. 89.

[16] See also Commissioner for Human Rights of the Council of Europe, “ Forced divorce and sterilisation – a reality for many transgender persons ”, Human Rights C omment s , 31 August 2010: “ These requirements clearly run against the principles of human rights and human dignity, as also underlined by Court decisions in Austria and Germany. ”