The European Court of Human Rights (ECtHR) has ruled by a majority of 6 to 1 that France violated Article 8 of the European Convention on Human Rights (Convention) in respect of two transgender applicants. The French courts had refused to grant the applicants leave to alter the sex on their birth certificates without them having undergone surgical procedures to irreversibly change their appearance, which involve a high probability of sterility. The ECtHR held that France had failed in its obligations under Article 8 of the Convention, which guarantees the right to private life and to physical integrity.
The case concerned 3 French transgender persons, who each applied to the French courts to change the entries concerning their sex and their forenames on their birth certificates. The applications were joined by the ECtHR; one application was then ruled inadmissible as the claimant, AP, had failed to exhaust domestic remedies. The first of the other two applicants, E. Garçon, brought proceedings at the Crétail tribunal to establish that she was now female and had a female forename. The Tribunal held that she had failed to demonstrate that she actually suffered from gender identity disorder, and this was upheld on appeal. The second applicant, S. Nicot made the same application in Nancy, where it was ordered that she furnish documents on the applicant’s medical and surgical treatment proving the effectiveness of her sex change - when she refused, the application was dismissed.
The applicants complained under Article 8 regarding the fact that rectification of the entry on their sex was made conditional upon an irreversible change of appearance. E. Garçon further argued that the condition of proving that she suffered from a gender identity disorder infringed her right to human dignity. Looking at the applicant’s challenge to the criterion that a change in one’s appearance be irreversible in order to amend the ‘sex’ entry on their birth certificate, the ECtHR noted that this implied undergoing medical treatment involving a high probability of sterility. The Chamber emphasised that this put the applicants’ physical integrity and sexual identity at stake. It was held that making the recognition of sexual identity conditional on undergoing an operation or sterilising treatment to which the applicants did not submit amounted to forcing the applicants to relinquish the full exercise of their right to respect for private life. The Chamber held that France had failed to comply with its positive obligations under Article 8 of the Convention by imposing a condition that the change in an individual’s appearance had to be irreversible to alter a birth certificate, and that this involved a high risk of sterility.
The ECtHR found no violation of Article 8 in respect of the obligation imposed on E. Garçon to prove that she actually suffered from gender identity disorder.
For a copy of the judgement click here.