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.
Sandra Duffy 