In the case of Y v. France (application no. 76888/17), the European Court of Human Rights (ECtHR) held that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The applicant, who is a biologically intersex person, complained about the domestic courts’ refusal to grant his request to have the word “neutral” or “intersex” entered on his birth certificate instead of “male”. In examining the case in the light of the respondent State’s positive obligation to secure to the applicant effective respect for his private life, the Court ascertained whether the general interest had been duly weighed against the applicant’s interests.
The Court noted, firstly, that an essential aspect of individual intimate identity was central to the present case, in that gender identity was in issue, and acknowledged that the discrepancy between the applicant’s biological identity and his legal identity was liable to cause him suffering and anxiety.
The Court then acknowledged that the arguments put forward by the national authorities in refusing the applicant’s request, based on respect for the principle of the inalienability of civil status and the need to preserve the consistency and reliability of civil status records and of the social and legal arrangements in place in France, were relevant.
It also took into consideration the Court of Cassation’s reasoning to the effect that judicial recognition of a “neutral” gender would have far reaching consequences for the rules of French law, constructed on the basis of two genders and would imply multiple coordinating legislative amendments.
The ECtHR noted that the Orléans Court of Appeal had held that granting the applicant’s request would amount to recognising the existence of another gender category. This would effectively amount to exercising a normative function which was in principle a matter for the legislature and not for the judiciary. In this way, the Court pointed out that respect for the principle of the separation of powers, without which there was no democracy, had thus been at the heart of the domestic courts’ considerations.
The Court recognised that the applicant was not asking for the enshrinement of a general right to recognition of a third gender but only for rectification of his civil status. Notwithstanding, the Court noted that if it were to uphold the applicant’s claim this would necessarily mean that France would be required, under Article 46 of the Convention, to amend its national law to that effect. In consequence, the Court considered that it was required to exercise restraint.
In matters of general policy on which opinions within a democratic society could reasonably differ widely, a special weight had to be accorded to the role of the domestic policy-maker. This was particularly true where, as in the present case, the question was one on which society would have to make a choice. In the absence of a European consensus in this area, it was therefore appropriate to leave it to the French State to determine at what speed and to what extent it could meet the demands of intersex persons, such as the applicant. The Court noted that it had considered the difficult situation in which intersex persons found themselves in terms of the right to respect for private life, especially the discrepancy between the legal position and their biological reality.
The Court concluded that, having regard to the discretion (“margin of appreciation”) enjoyed by France, it had not failed as a State in its positive obligation to secure effective respect for the applicant’s private life; it followed that there had been no violation of Article 8 of the Convention.