CONCURRING OPINION OF JUDGE HÃœSEYNOV

1. I fully share the majority’s view that there has been a violation of Article 8 of the Convention in the present case. I am writing separately to flag my strong disagreement with a statement contained in paragraph 76 of the judgment. The statement in question reads as follows: “[The Court concludes] that the legal framework in force at the material time in the respondent State did not provide ‘quick, transparent and accessible procedures’ for the examination of a request to change the registered sex of transgender people on birth certificates” (emphasis added).

2. When making this statement, the Chamber refers to paragraph 70 of the Court’s judgment in the case of X. v. the former Yugoslav Republic of Macedonia (no. 29683/16, 17 January 2019). However, the formulation used in that judgment is conspicuously different: “The foregoing considerations are sufficient to enable the Court to conclude that the current legal framework in the respondent State does not provide ‘quick, transparent and accessible procedures’ for changing on birth certificates the registered sex of transgender people” (emphasis added).

3. It is evident that the Chamber has limited the scope of the Contracting Parties’ obligation on legal gender recognition as clearly formulated in the X. case and reiterated recently in A.D. and Others v. Georgia (nos. 57864/17 and 2 others, § 73, 1 December 2022). The thrust of this obligation is to obtain an actual change of a person’s identity, not just an examination of the relevant request which can impose an onerous burden on the person; or such a request can ultimately be arbitrarily denied due to certain pathologising or unreasonable requirements, as, for example, in cases where the domestic law makes the recognition of the gender identity of transgender persons conditional on sterilisation surgery or on medical treatment entailing a very high probability of sterility (see A.P., Garçon and Nicot v. France , nos. 79885/12, 52471/13 and 52596/13, § 135, 6 April 2017).

4. It is also worth adding that the Council of Europe institutions have been explicit and consistent in their appeals to member States to “develop quick, transparent and accessible procedures, based on self-determination, for changing the name and registered sex of transgender people” on legal documents (see, in particular, PACE Resolution 2048 (2015) of 22 April 2015 entitled “Discrimination against transgender people in Europe”).

5. What is surprising is that the Chamber does use the formulation introduced by the Court in X. when setting out the general principles relating to the matter (see paragraph 57 of the judgment), however, in reaching the conclusion in the case, it deviates from that wording, without providing any grounds for that. It appears that by having done so, the Chamber has distorted the gist of the present case: the applicant’s complaint concerned the alleged lack of a regulatory framework effectively enabling him to exercise his right to legal gender recognition (see paragraph 64 of the judgment), and the majority’s finding is that there has been a violation of Article 8 of the Convention on account of the lack of such a regulatory framework ensuring that right (see paragraph 77 of the judgment). In the light of the above, the Chamber’s statement in question is certainly unfortunate and, I believe, will not be followed by the Court in its relevant case-law.