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Gender Recognition

Legal Cases

This section looks at the legal landscape of gender recognition and provides technical information on transgender cases that have gone to the European Court of Human Rights.

The European Court of Human Rights is an international court that was set up in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in The European Convention on Human Rights.

The Court has delivered more than 10,000 judgments in the last fifty years. These are binding on the countries concerned and have led governments to alter their legislation and administrative practice in a wide range of areas. The Court’s case-law makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe.

Trans Cases

B. v. France (25/3/1992) The Court concluded for the first time that there had been a violation of Article 8 in a case concerning the recognition of transsexual people [1] . Ms. B, a male-to-female transsexual person, complained of the refusal of the French authorities to amend the civil status register in accordance with her wishes.

Violation of Article 8 (right to respect for private and family life) The Court took into consideration factors distinguishing the case of B; whilst there were obstacles in the UK preventing birth certificates from being amended, in France these were intended to be updated throughout an individual’s life. The Court observed that in France many official documents reveal “a discrepancy between [the] legal sex and [the] apparent sex of a transsexual [person]” (§ 59), which also appear on social security documents and payslips. The Court held that the refusal to amend the civil register placed the applicant “in a daily situation which was not compatible with the respect due to her private life”.

Christine Goodwin v. United Kingdom (11/7/2002) This landmark case set the legal precedent in Europe regarding legal gender recognition. The applicant complained of the lack of legal recognition of her changed gender and, in particular, her treatment in terms of employment, social security and pension rights, and her inability to marry.

Violation of Article 8 (right to respect for private and family life) owing to a clear and continuing international trend towards increased social acceptance and legal recognition of post-operative transsexual people. “Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, the Court reaches the conclusion that the notion of fair balance inherent in the Convention now tilts decisively in favour of the applicant.”

Violation of Article 12 (right to marry and found a family) “The Court is not persuaded that it can still be assumed that [the terms of Article 12] must refer to a determination of gender by purely biological criteria” (§ 100).

The Court held that it was for the State to determine the conditions and formalities of the marriages of transsexual people but that it “finds no justification for barring the transsexual [person] from enjoying the right to marry under any circumstances.” Following the judgment in the Goodwin case, the UK introduced a system whereby transsexual people could apply to have their gender legally recognised through the issuance of a gender recognition certificate.

The following two cases concern a transsexual person who was married before gender reassignment surgery and who wanted to avail of gender recognition legislation.

Wena and Anita Parry v. United Kingdom (11/2006)
R. and F. v. United Kingdom (11/2006)
The applicants were married and had children. In each case, one of them underwent gender reassignment surgery and remained with their spouse as a married couple. With the Gender Recognition Act 2004, the applicants who had undergone gender reassignment made an application for a Gender Recognition Certificate, which could not be obtained unless they ended their marriage. The applicants complained under Articles 8 (right for respect to private and family life) and 12 (right to marry) that they had been unable to obtain legal gender recognition without ending their marriage.

Applications declared inadmissible
(rejected as manifestly ill-founded):
The applicants were requested to annul their marriage because same-sex marriages were not permitted under English law. The UK had not failed to give legal gender recognition and the applicants could continue their relationship through a civil partnership, which carried almost all the same legal rights and obligations. The Court observed that, when gender recognition was introduced, the legislature was aware that there were a small number of transsexual people in subsisting marriages but deliberately made no provision for those marriages to continue when one partner availed of legal gender recognition. The Court found that it could not be required to make allowances for that small number of marriages.

Schlumpf v. Switzerland (8/1/2009)
The refusal of the applicant’s health insurers to pay the costs of her gender reassignment surgery on the ground that she had not complied with a two-year waiting period before the surgery, required by the case-law as a condition for payment of the costs of such treatment.

Violation of Article 8 (right to respect for private and family life)
The Court found the waiting period requirement had been applied without regard to the age (67) of the applicant. The decision to undergo gender reassignment surgery was likely to be affected by that delay and would thus impair her freedom to determine her gender identity.

P.V. v. Spain (30/11/2010)
A male-to-female transsexual person who, prior to her gender reassignment, had a son with their wife in 1998; the couple separated in 2002. The applicant complained of the restrictions imposed by the court on the contact arrangements with her son, then aged six, on the ground that her emotional instability after her gender change entailed a risk of disturbing the child.

No violation of Article 8 in conjunction with Article 14.
The restriction on contact was not discrimination based on the applicant’s gender identity. The child’s well-being was the decisive ground for the restriction imposed by the Spanish courts. An arrangement was made that would allow the child to become accustomed to his parent’s gender change.

P. v. Portugal (Decision struck off the list 6/9/2011)
At birth, the applicant was registered as male and, as an adult, underwent gender reassignment. She complains of the lack of legal recognition of her identity, coupled with the alleged absence of any legislation on the matter. This is the first case of its kind concerning Portugal; the request for legal recognition to the domestic courts was successful.

[1] The language used by the European Court of Human Rights regarding transgender or gender identity rights is limited to 'transsexual people' and 'gender reassignment.' To date there have been no cases heard by the Court that address a broader and more inclusive understanding of trans* experiences.

Shortcut http://www.teni.ie/legal_cases

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