Intersex (Legal gender recognition)

(Application no. 40296/16), 14 November 2017 

Find Court’s communication here.

Find Court’s decision here. (non-exhaustion of domestic remedies)

• The applicant, an intersex person, was registered as male, but identifying herself as female. She complains of the absence of any procedure in Ukraine for changing gender and name records for intersex persons.
• ILGA-Europe together with OII Europe submitted the following:
  • There is lack of awareness about intersex people in Ukraine and the issues they face in their everyday lives. This results in a lack of non-pathologising information on intersex and lack of administrative procedures to reflect the person’s gender identity which may be wrongfully assigned after birth.  As a result, intersex people are wrongfully precluded from name change and legal recognition procedures that are available to trans people. 
  • According to the ECtHR, imposing a restriction on one’s right to bear or change a name without justified and relevant reasons is incompatible with the purpose of Article 8, which is to protect individuals’ self-determination and personal development. Therefore, restrictions on name change should be analysed very critically and even more so where they are seeking to prevent conformation with an individual’s gender identity.
  • International and European bodies have emphasized the need for quick, transparent and accessible legal gender recognition and name change procedures based on the principle of self-determination.  There is a growing international consensus at the national, European and international level of the need to recognise and protect their rights.

The German Constitutional Court decision is ground-breaking. It’s putting the conversation about recognition of intersex and non-binary people front and centre in a very positive way. 

German policymakers now have two options: introduce a third gender option for people who do not identify as a man or a woman, or remove gender registration altogether.

Either way, the official recognition of people outside the gender binary is coming to Germany! Yesterday, the court imposed a deadline that has to be met by legislators, so we know things will change by the end of 2018.

The court ruling recognises the wonderful diversity in our LGBTI movement. There are people who identify as male or female or non-binary. By opening up the options on birth certificates (or even removing the need to note down gender markers on such documents in the first place) it acknowledges the existence of intersex and non-binary people in our societies.  

Already in 2013, Germany introduced changes to gender registration. For babies that at birth were identified as intersex, with variations in sex characteristics that don’t fit medical norms for female or male bodies, the gender marker was left blank. However well intended, this blank led to increased stigmatisation of intersex people and raised the pressure on parents to agree to sex-conforming surgeries to make their child fit  a male or female gender marker.

ILGA-Europe are very pleased to hear it stated so publicly that more than two gender and sexes exist. We hope that the voices of many, many intersex and non-binary activists will be heard and listened to during the legislative process – as Hanne Gaby Odiele said at our Gala this year, intersex people are part of society and need recognition and respect!

• For more detailed information, read the joint statement from OII Europe, IVIM-OII Germany, TGEU and the German Trans* Association (Bundesvereinigung Trans*). 

Hanne Gaby Odiele at European Equality Gala 2017 from ILGA-Europe on Vimeo.

Change of name and gender of Iranian refugee

(Application no. 40888/17), 7 November  2017

Find here the communicated case.

• The present case concerns an Iranian trans man who was granted refugee status in Hungary. The Hungarian authorities summarily rejected his request for legal gender recognition (LGR), invoking the absence of a specific legal procedure applying to his situation.
• In their submission to the European Court of Human Rights ILGA-Europe together with TGEU and Transvanilla Transgender Association argued that:
  • Under European Refugee law, States have an obligation to provide legal status and suitable documentation, to ensure access to social rights and not to discriminate. LGR is seen as an element of legal status and as key to ensuring migrants’ access to public or private services, or to the labour market. Mismatching documents can cause re-traumatisation of trans refugees during asylum procedures and in the aftermath.
  • State Parties have a positive obligation under Article 8 to adopt LGR procedures that are “effective and accessible.” The Court found violations of the Convention in several other cases on account of LGR schemes that were misconceived or incomplete, giving rise to arbitrary or unfair outcomes. The same principle is firmly entrenched in other international law and professional guidelines. Lastly, comparatively more countries chose to provide recognised refugees with LGR.

Name change request by transgender woman

(Application no. 60796/16), 4 August 2017

Find Court’s communication here.

• The applicant, a transgender woman, complained of a violation of her right to respect for her private life on account of the Russian authorities’ refusal to change her name and remove her patronymic name without a change of gender.
• ILGA-Europe together with TGEU, Transgender Legal Defence Project and Human Rights Centre “Memorial”  submitted the following:
  • Both the ECtHR and the Court of Justice of the European Union (“CJEU”) have recognised that a person’s name is a fundamental part of their identity and thus fall within the scope of the protection conferred by Article 8 of Convention.
  • Under Russian law, there are no substantial requirements for a change of name, and the procedure should be quick, accessible and transparent. However, there is no consistent practice, and courts have refused to permit the change of name without a corresponding change of legal gender marker. The trend in other Contracting Parties is to allow anyone to change their name with no, or very minimal, pre-conditions.
  • There is also considerable disparity in Russia between the procedure for legal gender recognition described in law and the steps that transgender people must take to achieve it in practice. Legal gender recognition cannot be accessed in practice without a diagnosis of “transsexualism”, although this isn’t required by the law. Gender reassignment surgery is often an additional requirement. This practice is entirely arbitrary and at odds with ECtHR case AP, Garçon and Nicot v France, where the Court found that medical interventions which lead with a high probability to sterility and are mandatory requirements in legal gender recognition are not compatible with Article 8.
  • Transgender people in Russia who are unable to obtain documents reflecting their gender identity face considerable inconvenience in their daily lives, including discrimination in employment and various services due to the mismatch between their gender identity and their legal name and legal gender marker.
  • If the name change procedure entails more requirements or is limited compared to the procedure applicable to a person whose gender identity is in accordance with their gender assigned at birth (“cisgender”), it must be considered discrimination on grounds of gender identity. Name and gender identity are essential aspects of a person’s private life so the State should have only a narrow margin of appreciation in applying any restrictions to procedures that disproportionately affect transgender people.

LGR, civil status and birth certificate

(Application no. 8650/12), 4 August 2017

Find here the communicated case.

• The applicant, a post-operative transgender man, complained that Russia failed to discharge its positive obligation to recognise not only his gender transition, but also his civil status and parental ties without being required continuously to disclose that he had undergone transition.
• ILGA-Europe together with TGEU, Transgender Legal Defense Project, Human Rights Centre “Memorial” and “Coming Out”  submitted the following:
  • Restrictive LGR procedures hinder the ability of trans people to enjoy their family life. To secure the fundamental rights of trans persons, a change to an individual’s gender markers in official documents should apply for all legal purposes.
  • Birth certificates are frequently used in Russia. As a result, when a trans parent who changed their documentation, but was not able to get relevant amendments in their children’s birth certificates, has any contacts with third parties representing the children’s interests, it leads to revealing the trans person’s personal history and, usually, discrimination against that person and their family members. The situation is exacerbated by the discriminatory social and legal environment in Russia.

Legal gender recognition

(Application no 29683/16), 28 July 2017

Find here the full judgement (violation of Article 8 and award of damages).

• The applicant, who is transgender man, complained of the lack of a regulatory framework for the legal recognition of his gender identity and about the requirement, which had no basis in domestic law, that he undergoes genital surgery as a precondition for having his  gender identity recognised. 
• The European Court of Human Rights delivered its judgement on 17 January 2019:
  • In its judgement, the Court referred to the submission, in particular the relevant case-law of the Court with respect to transgender individuals’ rights to have their gender identity legally recognised. It referred to the comparative information about the situation in different Council of Europe member States, which given the recent developments, indicated a clear trend towards greater autonomy of individuals in legal gender recognition procedures. The reforms that were underway reflected the fact that the European standard of “quick, transparent and accessible” legal gender recognition procedures “based on self-determination” were implemented in practice. Referring to the case of A.P., Garçon and Nicot, the interveners submitted that legal gender recognition should not be dependent on gender reassignment surgery or hormonal treatment. The lack of statutory regulation of legal gender recognition procedures in the respondent State created a state of uncertainty for transgender people, which mitigated in favour of inconsistent practice being created and applied by the domestic authorities. Furthermore, there was limited access to trans-specific health care, which impeded any medical treatment (not available in the respondent State) in order to have gender identity recognised (paras 61-62).
  • The Court found that the case revealed legislative gaps and serious deficiencies that left the applicant in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his identity, causing long-term negative consequences for his mental health. Thus there was a violation of Article 8 of the Convention.

The case involves a trans man who had been denied the legal recognition of his gender identity at the national level, on the basis that gender reassignment treatment was not capable of resulting in a change of gender marker. This case raises the issue of the scope and contents of the positive obligation under Article 8 of the Convention to have in place an adequate procedure affording trans people the possibility of changing their legal gender.

• Find here the communicated case.
• The Court made a decision on 4 July 2024.

Legal gender recognition

A.P. v. France (App. no. 79885/12),

Garçon v. France (App. no. 52471/13)

Nicot v. France (App. no. 52596/13), 24 July 2015 (Key case according to the classification of the ECHR HUDOC database)

Find Court’s judgment here.

• The cases concern the validity of medical requirements imposed by the French authorities on those seeking legal gender recognition, including most prominently permanent sterilization.
• ILGA-Europe together with Amnesty International and TGEU  submitted the following:
  • The informed consent rule has been linked by the ECtHR to the “inalienable right to self-determination” and “the right to personal autonomy” which come within the scope of the right to respect of private life and the fundamental notions of human dignity and human freedom underpinning the Convention. The flip side of consent is the right to refuse medical treatment.
  • The Court has described gender identity as “one of the most basic essentials of self-determination,” linking it to a “right to sexual self-determination,” itself an aspect of the right to respect for private life. Denying a trans person the legal recognition of their gender identity has a severe impact on their daily lives. In Europe there has been a clear trend recently towards simplifying legal gender recognition procedures, including by abandoning sterilization and/or other medical prerequisites.
• The European Court of Human Rights delivered its judgement 6 April 2017.
• The Court held that the refusal for a change in civil status, on the grounds that the applicants had not provided proof of the irreversible nature of the change in their appearance – that is to say, demonstrated that they had undergone sterilisation surgery or medical treatment entailing a very high probability of sterility ­– amounts to a failure by the respondent State to fulfil its positive obligation to secure their right to respect for their private lives. There has therefore been a violation of Article 8 of the Convention.

Transgender rights in prison

(Application No. 10684/13), 31 March 2013 

Find Court’s communication here in French.

Find Court’s decision here. (Non-exhaustion of domestic remedies)

• The applicant, a trans prisoner, complained of the Turkish authorities’ failure to discharge their positive obligation under Article 8 (right to private life), by refusing to cover the costs of his gender reassignment.
• In their submission ILGA-Europe, together with TGEU, Kaos Gay Lesbian Cultural Research and Solidarity Association (Kaos GL) and Counseling Center for Transgender People (T-Der) provided information on trans issues generally, focusing on the problems of trans people in prison, and bringing out the experience in other countries of the provision of trans specific healthcare in prison. 

ILGA-Europe and Transgender Europe jointly submitted input for a public consultation on measures for improving the recognition of prescriptions issued in another European Union Member State.

Key concerns highlighted in our submission:

• We are worried by the fact that in some cases, trans persons were denied products on the basis that dispensers disapprove of their gender reassignment.
• It seems that some medicines, on which trans persons very much depend, are available only in some member states and not in other.
• We consider that the identification of the patient based solely on the first name or on the gender can be problematic in the case of patients whose appearance does not match the first name and the gender mentioned on the prescription.
• It seems that there is an extensive lack of knowledge within the trans community about the possibility of getting medicines prescribed in another member state.