ECHR judgment of 06 April 2017 in the case of A.P., Garcón and Nicot v. France (application No. 79885/12 and others).
In 2012, the applicants were assisted in preparing the application. Subsequently, the application was communicated to France.
In the case, the complaint to the requirements of the law, which are necessary to correct the civil status of transgender people, was successfully considered. In the case of violation of the requirements of Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms; on the requirements of Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms were not violated.
The circumstances of the case
The applicants in the case are transgender persons. In 2007-2009, they appealed to the courts of France to change the records in their birth certificates concerning gender and name. All courts rejected their claims, on the grounds that the applicants had not proved that they had undergone the necessary medical and surgical intervention that caused irreversible sex change. In the second applicant's case, the courts also held that it had not been proven that he had indeed suffered from an appropriate gender identity disorder. In the first applicant's case, the court attached particular importance to the fact that he refused to undergo a medical examination to confirm that the sex-change operation had actually been carried out. The survey was ordered on the grounds that the evidence presented to them was insufficient.
In 2012 and 2013, the French Court of Cassation dismissed the applicants' appeal. In the European Court, they complained that these conditions (arising from the legislation in force at the time) violated their right to respect for their private life or were degrading.
Concerning compliance with Article 8 of the Convention. The Court considers that the complaints should be examined in terms of the positive obligations of the respondent State to guarantee respect for private life.
(a) The condition that changes in appearance (persons) be irreversible (second and third applicants). Going beyond the regrettable uncertainty of the official legislative formulation (the requirement of an irreversible change in appearance), French positive law did in fact recognize the gender of transgender people as a result of a sterilization operation or therapy, which in its nature and intensity attracted an extremely high probability of sterilization.
(i) Freedom of discretion of the State. Although there is no consensus among the Member States on the criteria for sterility and the present case does affect public interests, the following elements have led the Court to conclude that the respondent State had only a narrow margin of appreciation in this matter:
- at the heart of these complaints are the key aspects of the person's intimate identity and even his or her existence: on the one hand, physical integrity (given that it was about sterilization), on the other hand, gender;
- In addition, the controversial provision was removed from the positive law of 11 participating States, including France, in 2009 - 2016 and similar reforms are being discussed in other participating States. This indicates that in recent years there has been a trend in Europe in the form of a rejection of this criterion, based on a change in the understanding of transgenderity;
- a number of European and international institutional actors working in the field of promotion and protection of human rights unequivocally expressed their support in refusing the criterion of sterility before or simultaneously with the decisions of the Court of Cassation in the present case.
(ii) Comparison of competing interests. Indeed, ensuring the principle of inalienability of the civil status, guaranteeing the reliability and uniqueness of the civil status and, more generally, ensuring legal certainty were issues of public interest.
However, French positive law at the time posed an intractable dilemma to the stakeholders: either they undergo surgery or therapies that lead to sterilization, contrary to their own will and, while doing so, refuse to fully exercise their right to respect for their physical integrity, or they refuse to recognize their sexual and therefore from the full enjoyment of the same right, that is, in general, the right to respect for private life, one aspect of which is the right to respect for the physical inviolability. In the Court's view, the dependence of the recognition of the sex of transgender people on the operation or therapy that results in sterilization, or with the greatest likelihood of having such a result, against their will is equated with the dependence of the full exercise of the right to respect for private life, provided for in Article 8 of the Convention, from the full exercise of the person's right to physical integrity, guaranteed not only by this provision, but also by Article 3 of the Convention.
Consequently, there was no fair balance that should have been established between public interests and the interests of the person.
The case involved a violation of the requirements of Article 8 of the Convention (adopted by six votes "for" with one - "against").
(b) The condition for diagnosing a sexual identity disorder (second applicant). The applicant argued that transgenderity was not a disease and the approach to sexual identification as a consequence of psychological or medical pathologies was a factor of stigmatization. This view was also expressed in 2013 by the National Advisory Commission for Human Rights (Commission nationale consultative des droits de l'homme, CNCDH).
(i) Freedom of discretion of the State. Although the issue concerned an important aspect of the identity of transgender people, as the recognition of their gender was affected, the following elements led the Court to conclude that States parties retained wide margin of appreciation in deciding whether to apply the condition of pre-existing psychological diagnosis:
- there was almost unanimous position on this item among the participating States in which it was possible to legally recognize the gender of transgender people;
- transsexuality is included in Chapter 5, "Mental and Behavioral Disorders" of the International Classification of Diseases published by the World Health Organization (ICC-10, N F64.0);
- Unlike the condition of sterility, the obligation to undergo psychological diagnosis does not directly question the physical integrity of the person;
- as a secondary consideration, it does not appear that European and international actors working in the field of promotion and protection of fundamental human rights take an equally strong position on this point, as regards the condition of sterility.
(ii) Comparison of competing interests. The highest health authority in France said in 2009 that the requirement to diagnose a sexual identity disorder was part of an approach known as "differential diagnosis" designed to ensure doctors' confidence before hormonal or surgical treatment that the sufferings of the patient are not due to other causes. In this regard, this specific requirement was intended to protect the interests of stakeholders, ensuring that they did not begin the process of changing their legal status for erroneous reasons.
Moreover, in this paragraph the applicant's interests were partially overlapped by public interest related to the protection of the principle of the inalienability of the civil status, the authenticity and uniqueness of the register of acts of civil status and legal certainty, considering that this requirement also contributed to ensuring the stability of the changes to the entry on the field of the register of acts civil status.
By submitting a controversial basis for rejecting the applicant's claim, the respondent State, given its broad margin of appreciation, established a fair balance between competing interests.
The requirements of Article 8 of the Convention were not violated (unanimously).
(c) Obligation to undergo a medical examination (first applicant). The applicant, who preferred to undergo an operation to change the sex abroad, claimed in domestic courts that he had thus fulfilled the conditions provided for by the substantive law to change the civil status. The controversial expert study, which was intended to verify whether this statement was true, was appointed by the judge in the process of collecting evidence, that is, in an area in which the European Court provides a very wide margin of appreciation to participating States. Nothing testified that this decision was arbitrary. The Civil Procedure Code provided the courts with unlimited discretion in the appointment of procedural measures, including medical examinations, if they did not have sufficient evidence to make a decision. The court pointed out clear reasons why he considered the evidence to be insufficient. As a result, he appointed experts of three different but complementary specializations, which were entrusted with an extremely detailed task. Therefore, even if this medical examination involved a genital examination, the degree of intervention should have been given limited importance. By raising the controversial basis for rejecting the applicant's claim, the respondent State authorities established a fair balance between competing interests.
The requirements of Article 8 of the Convention were not violated (unanimously).
In the application of Article 41 of the Convention. The fact of an establishment of a violation in itself is sufficient fair compensation for moral harm.