On April 6th, the European Court of Human Rights handed down its judgment in AP, Garcon, and Nicot v France, ruling that an infertility/sterilisation requirement in States Parties’ gender recognition law is a violation of the Article 8 right to privacy. As the decision is currently only available in French on HUDOC, what follows is this author’s translation and comment on the issues and rulings. I note that both the French text and the English press release on this judgment use ‘le réquerant’ and male pronouns for the applicants; I do not find this correct or appropriate, as the applicants are all transgender women. I will be using female pronouns in their regard.
Until recently, the application process for gender recognition in France involved a petition via the courts which could include demands for medical markers of gender transition, including ‘sex reassignment’ surgical interventions which result in infertility. In late 2016, however, the law was updated (by Loi n° 2016-1547 du 18 novembre 2016 de modernisation de la justice du XXIe siècle) to allow for legal gender recognition without surgical requirements. This law inserted new sections into article 61 of the French Code Civil, as follows:
Art 61-5 (to be inserted) Any adult or emancipated minor can make an
application to have their gender corrected in the actes de l’etat civil (civil registry).
They must demonstrate sufficient facts to support their claim: this can include
that they appear publicly to belong to the affirmed sex; that they are known in
that sex to family, friends, and colleagues; that they have changed their forename
to one of the affirmed sex.
Art 61-6 (to be inserted) The application is brought before the TGI. The applicant
must declare her free and informed consent to the change of documents and
bring any necessary supporting evidence. Not having undergone medical
treatment, surgery, or sterilisation cannot be bars to the change. The decision-maker
confirms that the applicant satisfies the conditions in 61-5 and orders the
modification of the information in the actes de l’état civil.
Art 61-7 A note is to be made of the change of sex and, if necessary, of forename,
in the margin of the applicant’s birth certificate within 15 days of the judgment,
at the request of the procureur de la République.
(Translation and paraphrasing, this author’s, from Chiam, Duffy, and Gil, ILGA Trans Legal Mapping Report 2016.)
AP v France (as I will be abbreviating it) involves three applicants – cases 79885/12, 52471/13 and 52596/13 – alleging that the demands made by the French legal system before they could be granted legal gender recognition (LGR) were a violation of their Article 8 ECHR rights. The demands in question were that a candidate for LGR had to establish “la réalité du syndrome transsexuel” including irreversible physical changes. Resulting from these demands, AP, the first applicant, also alleged a breach of her Article 3 ECHR right to freedom from cruel, inhuman, and degrading treatment, due to an invasive medical examination she had been required to undergo, and a breach of her Article 6.1 ECHR right to due process taken in conjunction with Article 8 ECHR, as the internal authorities which regulated LGR had made a manifest error in concluding that she had not proven that she had made irreversible physical changes. The second and third applicants, Garcon and Nicot, also alleged violations of Article 14 ECHR, the right to freedom from discrimination, taken in conjunction with Article 8 ECHR.
The applicants
AP came out as transgender in 2006 and began hormonal and psychiatric treatment at that time. She had obtained medical certification that she was living with “un syndrome typique de transsexualisme” (as ‘transsexualism’ is an archaic and offensive term in English, I will quote the untranslated French term when needed) from her doctors, including a referral for surgical intervention based on her long-term and deeply felt gender dysphoria and the ‘real-life test’ of presenting as female for a considerable length of time. AP did not want to have surgery, but resigned herself to it because of the French legal system. She travelled to Thailand in 2008 and had surgery there, an event further certified by her French doctors. In 2009 a psychiatrist certified that she should be allowed to update her civil registry details to accord with her appearance and wishes.
In February 2009, the Paris TGI/High Court gave a preliminary ruling on her case in which it stated that despite her certifications and experience, a definite diagnosis of transsexualisme required multi-disciplinary input and ordered that a psychiatrist, an endocrinologist, and a gynaecologist examine the applicant’s case and describe her physical and psychological state, as well as their opinion on her true gender. AP was ordered to pay the fees for this process.
AP refused to undergo this examination, claiming a violation of her dignity and bodily autonomy. The TGI did not let her appeal its preliminary ruling. The case itself was heard by the TGI in November 2009. It found that the certifications produced by AP were incomplete, particularly regarding her psychological state; that patients undergoing surgery in France would have full records of the procedure, which she, having had it overseas, did not; and that, in the absence of the testing required by the preliminary ruling, it could not grant AP’s application.
The November decision was upheld by the Court of Appeal in 2010. It held that although Article 8 ECHR demanded (following Goodwin v UK) that an applicant who had fulfilled the medical and psychological certification requirements was entitled to LGR, AP had not fulfilled this criterion. It also held that the interference with privacy involved in the requirements was proportionate to the aim of the law, and that AP’s refusal was on the “irrelevant pretext” of privacy protection. It did allow AP’s change of name on her birth certificate.
The case was heard by the Cour de Cassation/Supreme Court in 2012. Despite AP’s invocation of Council of Europe human rights guidance, the CdC upheld the Court of Appeal’s ruling.
Garcon stated that she had begun hormonal treatment in 2004, that she presents as female in appearance, and that she had undergone genital surgery. She also stated that social pressure to present as male had led her to two divorces. She had children from those marriages.
She applied to the TGI in 2010, requesting that her name and gender marker be updated on her birth certificate. She was refused on both counts, on the grounds that the social and medical testimonies that she had presented to support her application were insufficient. She appealed, and in 2011 the Court of Appeal upheld the TGI’s decision. It stated that not only was her evidence insufficient, but her refusal to undergo cosmetic or genital surgery and her lack of psychiatric certification added to this deficit.
Alleging breaches of Articles 8 and 14 ECHR, Garcon appealed to the Cour de Cassation, the decision in which was handed down in 2013. She claimed that her Article 8 ECHR rights included the ability to self-define her gender identity without pathologisation and sterilisation; to state otherwise would be to violate her bodily autonomy and to subject her to discrimination. The appeal was rejected, on the basis that the earlier courts had found an appropriate balance between the rights of the individual and the requirements of legal certainty.
Nicot attested that she had had to hide her gender identity for years for fear of stigma and losing custody of her daughter. She began openly presenting as female once her daughter reached adulthood. She stated that the discrepancy between her lived gender and the gender on her state identification documents meant that she was continually forcibly ‘outed’ as transgender. Similarly to the other applicants, her application to the TGI was rejected in 2008. While accepting that domestic and European jurisprudence established a right to LGR as part of private life, it held that it was legitimate that some conditions be put on this entitlement, including the requirement that a “true” trans person would undergo surgical interventions. She was ordered to present certification of medical treatment if she wished her application to succeed.
In 2009 Nicot once again applied to the TGI and was once again rejected for lack of evidence of medical interventions. On appeal, her case was again rejected, on the grounds that her privacy did not exonerate her from the requirements for LGR and that this treatment was not discriminatory. The Cour de Cassation also denied her request, including on Articles 8 and 14 ECHR grounds.
Relevant elements of domestic law and policy
The Court noted a 2009 report from the French Department of Health which detailed a ‘course of treatment’ for transgender persons presenting to their doctor. This involved 1) a diagnosis of gender identity disorder; 2) a “real-life test” – openly presenting in the identified gender for a given period of time; 3) hormone therapy; 4) surgical intervention. It recognised, however, that not all applicants will want to undergo surgery, for various reasons including risk of side-effects.
It also noted Articles 11, 143, 144, 147, 232, and 263, of the Code Civil, which taken holistically establish that it is the right of a court to request expert intervention and plaintiff co-operation with the same in the event that a judge feels s/he does not have sufficient evidence to make a ruling. However, the judge is required to take the least invasive and expensive course of action possible.
With regard to domestic jurisprudence, the ECtHR made reference to decisions by the Cour de Cassation which held that the right to LGR in the interest of the individual’s private life did exist but was conditional on medical certification of the legitimacy of the applicant’s transgender status, along with proof of their social behaviour. In 1992, the Cour de Cassation enumerated five conditions for LGR: 1) present with ‘transsexualisme’; 2) undergo therapeutic medical/surgical procedures; 3) no longer have the physical characteristics of the sex assigned at birth; 4) have the physical appearance of the ‘other’/identified sex; 5) social behaviour corresponding to the identified sex.
The “décret no 2010-125 du 8 février 2010” had removed early gender identity disorder from a list of long-term psychiatric conditions for the purposes of social welfare.
The “circulaire no CIV/07/10 du 14 mai 2010 relative aux demandes de changements de sexe à l’état civil” advised the magistrates of the appeals courts to accede to applications for LGR once the person concerned had undergone an irreversible change of sex following hormonal and surgical interventions. It also requested that the magistrates not require extra expert testimony unless there is a serious doubt about the applicant’s transgender status.
The Minister for Justice and Civil Liberties in 2010 responded to a Written Question (JO Sénat, 22 juillet 2010, p. 1904) on the definition of the term ‘irreversible’ in this context. Referencing Council of Europe Recommendation no. 1117, as quoted in the 2009 report cited above, he replied that ‘irreversible’ is a medical and not a legal term referring to irreversible changes in physical characteristics such as fertility. The burden of proof in this matter would fall on the applicant.
In 2013, the National Commission on Human Rights (CNCDH) was requested to deliver an opinion on the status of gender identity in French law, and the conditions for LGR. The CNCDH consulted with medical and legal experts and NGOs. In its response, the CNCDH identified two conditions for LGR in the jurisprudence of the Cour de Cassation; the diagnosis of ‘transsexualisme’ and the presence of irreversible physical change. It decided in favour of abolishing the medical requirements, stating that they were considered intrusive and humiliating by the persons concerned; that they differed from jurisdiction to jurisdiction which meant that trans persons often suffer inequalities; and that they contributed to the stigma and alienation suffered by trans persons.
Two separate Bills, in 2013 and 2014, had proposed depathologised LGR frameworks.
As stated above, the Loi de modernisation de la justice du XXIieme siècle amended the Code civil to allow for LGR without pathologisation requirements.
Comparative law
The Court refers to the Trans Rights Europe Map 2016 produced by Transgender Europe, enumerating the various European countries at the date of writing in which LGR was not available (7), was available with a sterilisation requirement (24); without a sterilisation requirement (16). By April 2017, the latter had become 18. The Map also shows that the movement toward liberalising LGR laws is trending in recent years.
International sources
Council of Europe Commissioner for Human Rights
The Court quotes the 2009 Issue Paper on ‘Human Rights and Gender Identity‘ from the Office of the Commissioner, which finds in favour of abolishing sterilisation requirements.
Council of Europe Committee of Ministers and Parliamentary Assembly
A 2010 CoM Recommendation on measures to combat discrimination based on sexual orientation and gender identity advised that conditions for LGR, especially medical requirements, should be reevaluated regularly to ensure they are not abusive. It also recommended that States Parties should take all measures to ensure quick, transparent, and accessible LGR procedures.
In Resolution 1728 (2010) on discrimination on the basis of SOGI, the Parliamentary Assembly called on States Parties to uphold the right to LGR without sterilisation or surgical requirements.
Parliamentary Assembly Resolution 1945 (2013), ‘Putting an End to Forced Sterilisations and Castrations’, held that these coercive procedures could not be justified in the twenty-first century, and called on States Parties to update their laws to end the practice.
Resolution 2048 (2015), on discrimination against transgender persons in Europe, called on States parties to abolish medical requirements for LGR, including both physical and psychological interventions/diagnoses, to remove transgender status from classification as a mental illness, and to ensure access to healthcare free from stigma.
United Nations
In a 2011 report to the Human Rights Council on discrimination and violence on the basis of SOGI, the UN High Commissioner for Human Rights recommended that States Parties facilitate LGR without breach of the person’s human rights.
In his report of February 2013, the Special Rapporteur on Torture recommended that States abolish all invasive or irreversible medical treatments, including genital ‘normalising’ surgeries, involuntary sterilisation, unethical experimental procedures, and conversion therapies.
A joint report entitled ‘Eliminating forced, coercive, and otherwise involuntary sterilization’ was published in 2014 by the World Health Organisation, UNICEF, the High Commissioner on Human Rights, UN Women, UN AIDS, the UN Development Fund, and the UN Population Fund. It points out that forced sterilisation violates bodily integrity, autonomy, and human dignity, and can cause or entrench discrimination against trans and intersex persons.
Alleged Article 8 ECHR violations
Admissibility: The Court found AP’s Article 8 ECHR, application inadmissible, as she had not exhausted domestic remedies. The French government had contested AP’s line of argument before the Cour de Cassation, stating that she had not challenged the requirement for irreversible sterilisation but rather sought to prove that she had fulfilled it. The ECtHR agreed, stating that AP’s argument at the Cour de Cassation had three elements: 1) that she should not have to undergo expert examination; 2) that she had in fact supplied evidence of un syndrome de transsexualisme; 3) that there was discriminatory treatment contrary to Article 14 ECHR. She did not challenge the requirement, and therefore her Article 8 ECHR case was inadmissible.
Basis: The Court recalled that it had previously held that gender identity came under the broad heading of Article 8 ECHR privacy rights; that personal autonomy is a large element of Article 8 ECHR rights; and that personal growth with physical and moral integrity also forms part of Article 8 ECHR. It refers to previous jurisprudence in each case. It notes that its previous gender recognition jurisprudence has all referred to either individuals who had undergone surgical interventions, or who wished to do so, but that this does not meant that LGR without surgery is outside the ambit of Article 8 ECHR.
Arguments: The French government argued that this case should be considered as one regarding positive obligations, as Article 8 ECHR places an obligation on States Parties to enact LGR with a margin of appreciation on how to do this. The Court agrees, citing Sheffield and Horsham v UK and Hämäläinen v Finland. It therefore asks: does respect for the applicants’ private life require that the State undertake a positive obligation to allow them LGR without needing to fulfil the impugned conditions? It also asks whether, at the time of the facts of the case, France was acting within its margin of appreciation in requiring that the applicants undergo these conditions.
Regarding irreversibility
The applicants argue that under Article 8 ECHR, the right to LGR should be established without the requirement of irreversible conditions. On this basis, they contend that the Cour de Cassation is incompatible with Article 8 ECHR in its findings, as it does not find that LGR is a fundamental freedom, but rather a consequence of a mental disorder in the applicant which is ‘rectified’ by surgery. They also argue that LGR without sterilisation would not be a danger to the system of civil registry, as civil records can already be updated for various reasons (among them marriage or legal name change). There is also no moral argument for not letting one update one’s legal gender identity without irreversible surgery.
The Government contended that the case of YY v Turkey (ECtHR, 2015) provided the basis for the requirement of surgery. It argued that the jurisprudence of the Cour de Cassation did not require sterilisation per se, but that the traditional ‘medical/surgical treatment’ involved genital surgery. However, with advances in medical science, the irreversible treatment could be achieved via hormonal interventions, negating the need for surgery. They also defended the necessity for conditions on LGR according to the French principle of “l’indisponibilité de l’état des personnes“, which holds that updating or changing one’s civil status cannot be done purely on the will of the person, but must be seen as an element of one’s overall legal personhood regulated by the law. They argue that this principle of indisponibilité is a justifiable limit on requests such as those of the applicants. Finally, they note the change in the law resulting from the entry into force of the statute on 21st century justice, previously discussed.
Third party intervenors
Submissions from ADF International, Amnesty International, TGEU, and ILGA Europe were considered. ADF, an American religious conservative organisation, noted that the margin of appreciation has traditionally been applied in cases on trans rights and that in their view, the Yogyakarta Principles do not reflect international law.
Amnesty, ILGA, and TGEU, all human rights organisations with an emphasis on trans rights, argue that under Article 5 of the Oviedo Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, no-one should undergo medical procedures which are non-consensual. Trans persons in France seeking LGR, however, are not voluntarily undergoing irreversible procedures. Furthermore, the pathologisation requirement in the LGR process in France contributes to stigma and exclusion. They recommend the position of the World Professional Association on Transgender Health, which rejects the necessity of sterilisation for LGR, and argue that there are breaches of Articles 3 and 8 ECHR in France’s policy.
The Court’s consideration of the Article 8 arguments
The ECtHR states that the underlying question in this case is whether, in requiring “irreversible change in appearance” before LGR can be granted, the French government is in fact forcing trans persons to undergo sterilisation. It notes an ambiguity between the terms of this phrase: ‘appearance’ could denote a superficial change, while ‘irreversible’ means a far more serious level of intervention. This ambiguity is problematic. The Court, regarding the report of the French National Human Rights Commission (CNCDH) and internal legal/policy documents, that the intention of the French law is to ensure that persons seeking LGR must undergo – if not surgical interventions – then hormonal treatments of a similarly serious nature which will most likely cause sterility. At the time of the applicants’ cases, therefore, it is persuaded that the conditions being implemented including sterilisation.
The Court then recognised that in Article 8 ECHR matters, states do enjoy a margin of appreciation; however, when it comes to important elements of individuals’ existence or personhood, that margin is limited (referencing Hämäläinen). There is no European consensus on the sterilisation requirement, and France has a legitimate legal aim for the interference in this case. However, it took into account that eleven European states – including France – had removed a sterilisation requirement from their laws between 2009 and 2016, and that many international human rights organisations are very strongly opposed to such a requirement.
Referring to its own previous jurisprudence, the Court then went on to summarise its position that non-consensual sterilisation or other serious medical treatments on adults with the capacity to consent or refuse is a violation of the principles of bodily autonomy and self-determination. Requiring persons seeking LGR to undergo such procedures, therefore, is a violation of their Articles 3 and 8 ECHR rights. For France to require persons to choose between coercive sterilisation and non-recognition of their personhood is an unjust and disproportionate interference. They were being forced to choose between their right to bodily autonomy and their right to respect for their private lives. France had therefore failed in its positive obligations toward the applicants at the time of their proceedings.
Regarding medical diagnosis of transgender status
The second applicant, Garcon, argued that requiring persons to medically prove their trans status is an affront to their dignity and defines them as mentally ill. The Government contended that such a requirement is present in most States Parties and that it exists to ensure that before undergoing medical interventions, it is certain that the applicant’s problems are not being caused by other factors such as mental ill-health.
The Court takes note of the fact that the third-party intervenants and the CNCDH argue that there should not be any pathologisation requirements for gender recognition. It states, however, that only four out of forty States Parties wherein recognition is possible do not require a medical diagnosis – a “quasi-unanimity”. Furthermore, the WHO classifies gender identity disorder within its ICM. Because a medical diagnosis was not as profound an interference as a surgical intervention, and because the State has a legitimate aim in ensuring that persons do not unnecessarily undergo significant medical treatments, the requirement for a diagnosis is a proportional limitation on the applicant’s Article 8 ECHR privacy rights.
Requirement for a medical examination
The first applicant, AP, had argued that the requirement that she undergo a physical medical examination as part of her application for LGR was an interference with her privacy which was not justifiable by law. She referred to the ECtHR’s decision in B v France, wherein the Court found that the principle of inviolabilité in itself was not enough to constitute a legitimate goal in law. She also argued that the margin of appreciation is limited in cases such as these and that forced examination by doctors at the behest of the French courts is a disproportionate interference. The Government stated that this was not a systematic policy across LGR applications, but rather one used where there is insufficient clarity regarding the irreversibility of the interventions undergone.
Although AP had argued this point under both Articles 3 and 8 ECHR, the Court chooses to consider the Article 8 reasoning. It finds that the examination in question would fall under the heading of evidence-gathering, and that the ECtHR gives national courts a broad margin of appreciation in that regard. It did not find any arbitrariness in the French Court’s reasoning or requirements for this examination. Although the examination was an interference with AP’s privacy, the Court considered that it was not undue interference. The rejection of AP’s application for LGR based on her refusal to be medically examined, therefore, was not a violation of Article 8 ECHR.
Other arguments
The Court considered that Garcon’s and Nicot’s applications under Article 14 ECHR, on discrimination, were admissible; however, having found a violation of Article 8 ECHR in their regard, it was not necessary to consider the Article 14 ECHR arguments separately.
Similarly, although it held that AP’s application under Article 6 ECHR, regarding due process, was admissible, on the facts of the case it was not necessary to separately examine her arguments in this regard.
Dissenting opinion
Ranzoni J offered a dissenting opinion wherein he argued that the Court did not sufficiently allow for the margin of appreciation to be afforded to France. He contended that the majority had not sufficiently invested in their reasoning with regard to the findings on Article 8 ECHR, calling it an “audacious presumption” to rely on an uncorroborated statement about medical developments in the understanding of transgender status. Furthermore, although the international organisations (such as UN bodies) referred to in the majority judgment are of great importance, they are organisations concerned with the “promotion” of human rights, and the majority does not base its opinion on binding law or on European human rights “protection” law.
Ranzoni J takes issue with the majority’s finding regarding the margin of appreciation, noting that 22 ECHR States Parties will now have to update their laws on LGR. He analyses the precedent of ECtHR trans jurisprudence from Rees to YY, noting the Court has traditionally made incremental steps in this regard, which he compares to the “genuine/real leap” in reasoning visible in this case.
While it is certainly a difficult question whether the sterilisation requirement is an unjustifiable breach of Article 8 ECHR rights in the applicants’ regard, the reliance on European consensus is, in Ranzoni J’s opinion, incorrect. He would recommend that the matter be heard by the Grand Chamber to debate the applications of the concepts of consensus and margin of appreciation. However, in this opinion, he would find that France had acted within its margin of appreciation in imposing the irreversibility condition on LGR.
Sandra Duffy 