European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association

Promising ECtHR decision on sterilisation requirement

Turkey violated the right to privacy of a trans man when national authorities refused access to gender reassignment surgery.

In a European Court of Human Rights Chamber judgment released this morning (Tuesday 10 March 2015) the 7-judge panel confirmed that Turkey had breached the applicant’s rights under Article 8 of the European Convention on Human Rights (ECHR) by denying him gender reassignment surgery on the grounds that he had not already undergone sterilisation.

ILGA-Europe welcomes the Y.Y. v Turkey announcement. In a very positive development, the Court took the view that respect for the applicant’s physical integrity precluded any obligation for him to undergo sterilisation treatment. The fact that the applicant in question has had his rights publically vindicated and received damages for the lengthy violation is encouraging. The Court’s acknowledgement of the rights of trans persons to physical and moral security is also to be warmly received. However, ILGA-Europe notes that the Court did not take the opportunity to assess sterilisation as a requirement for legal gender recognition generally.

Having first applied for permission to undergo gender reassignment surgery in September 2005, Y.Y. was only granted this permission in March 2013. The intervening 7 year delay was caused by the provisions contained in Article 40 of Turkey’s Civil Code. One of the statutory requirements for gender assignment surgery is a diagnosis of permanent infertility. Despite having lived in his true gender and being confirmed as transsexual by psychiatric experts, Y.Y.’s application was rejected.

‘While today’s judgment did emphasis the need for a constant, dynamic approach when it comes to examining the appropriateness of legal gender recognition measures, the ECtHR did not go into detail on the suitability of sterilisation more generally’, said ILGA-Europe’s Senior Policy and Programmes Officer Sophie Aujean. ILGA-Europe is very interested in the concurring judgment of Judges Keller and Spano.

‘Not only do they agree with the Article 8 violation, Keller and Spano believe that the Court could have also examined the question of whether the requirement of permanent sterility is compatible with Article 8 of the Convention. Given the abusive, intrusive nature of sterilisation procedures, a more in-depth examination of their suitability would have been applauded by many in the LGBTI community’ concluded Sophie Aujean.