The requirement to undergo sterilisation or treatment involving a very high probability of sterility in order to change the entries on birth certificates was in breach of the right to respect for private life
A.P., Garçon and Nicot v. France 06-04-2017 (no. 79885/12, 52471/13 and 52596/13)
The case concerned three transgender persons of French nationality who wished to change the entries concerning their sex and their forenames on their birth certificates, and who were not
allowed to so do by the courts in the respondent State. The applicants submitted, among other points, that the authorities had infringed their right to respect for their private life by making
recognition of sexual identity conditional on undergoing an operation involving a high probability of sterility.
The Court held, in particular, that making recognition of the sexual identity of transgender persons conditional on undergoing an operation or sterilising treatment to which they did not wish to submit amounted to making the full exercise of one’s right to respect for private life conditional on relinquishing full exercise of the right to respect for one’s physical integrity.
The three applicants are French nationals. The first applicant, A.P., was born in 1983 and lives in Paris (France). The second applicant, E. Garçon, was born in 1958 and lives in Perreux-sur-Marne
(France). The third applicant, S. Nicot, was born in 1952 and lives in Essey-les-Nancy (France). In view of the similarity between the applications, the Court considered it appropriate to join them, in application of Rule 42 § 1 of the Rules of Court.
On 11 September 2008 A.P. brought proceedings against the public prosecutor at the Paris tribunal de grande instance (TGI) to have it established that he was now a female and that his first name was A. (a female forename). He submitted four medical certificates in support of his request, one of which certified gender reassignment surgery undergone in Thailand on 3 July 2008. In an interlocutory judgment of 17 February 2009, the TGI ordered a report covering the physiological, biological and psychological aspects of his situation. A.P. refused to submit to this examination, on account of its cost and the infringement of his physical and moral integrity. By a judgment of 10 November 2009, the TGI dismissed A.P.’s action. The Paris Court of Appeal confirmed the TGI’s judgment in so far as it dismissed the request to change the entry on his sex, but ordered that the forenames be changed. On 7 June 2012 the Court of Cassation dismissed an appeal on points of law.
On 17 March 2009 E. Garçon brought proceedings against the public prosecutor at the Créteil tribunal de grande instance (TGI) to have it established that he was now a female and that his first name was Émilie. He referred to a certificate drawn up by a psychiatrist in 2004; this certificate indicated that he was transgender, but it was not added to the case file. On 9 February 2010 the TGI held that, since he had failed to demonstrate that he actually suffered from the alleged gender identity disorder, E. Garçon’s action ought to be dismissed. The Paris Court of Appeal upheld the judgment. On 13 February 2013 the Court of Cassation dismissed an appeal on points of law.
On 13 June 2007 S. Nicot brought proceedings against the public prosecutor at the Nancy TGI to have it established that he was now a female and that his first name was Stéphanie. On 7 November 2008 the TGI adjourned the proceedings and ordered that medical documents on the applicant’s medical and surgical treatment, proving the effectiveness of his sex change, be submitted to the case file. S. Nicot refused to submit these documents. In consequence, by a judgment delivered on 13 March 2009, the TGI dismissed his action. The Nancy Court of Appeal upheld the judgment. On 13 February 2013 the Court of Cassation dismissed an appeal on points of law.
THE DECISION OF THE COURT
The Court noted that, before the domestic courts, A.P. had not challenged the condition, imposed by French law at the relevant time, that the change in his appearance be irreversible, but had attempted to argue, using a medical certificate established abroad, that he fulfilled this condition. He had thus not exhausted the domestic remedies and this part of his application was therefore inadmissible.
With regard to the two other applicants’ complaint concerning the criterion that the change in one’s appearance be irreversible in order for requests for amendments to the “sex” entry on birth certificates to be granted, the Government did not dispute the applicability of Article 8 to the present case under its “private life” aspect, in that the latter included the right to sexual identity.
The Court noted, firstly, that the disputed criterion implied undergoing an operation or medical treatment involving a high probability of sterility. In addition, given that individuals’ physical integrity and sexual identity were at stake, the Court granted the respondent State limited room for manoeuvre (“a narrow margin of appreciation”). The Court noted that making recognition of the sexual identity of transgender persons conditional on undergoing an operation or sterilising treatment to which they did not wish to submit amounted to making the full exercise of one’s right to respect for private life conditional on relinquishing full exercise of the right to respect for one’s physical integrity. The Court held that the fair balance that the States Parties were required to strike between the general interest and the interests of the individuals concerned had not been maintained. In consequence, it considered that the condition that the change in an individual’s appearance had to be irreversible amounted to a failing by the respondent State to comply with its positive obligation to guarantee the right to respect for private life. The Court held that there had been a violation of Article 8 in this regard.
With regard to the condition of proving that one did in fact suffer from gender identity disorder, imposed by French law in order to grant requests for changing sex, the Court observed that a broad consensus existed among the member States in this area and that this criterion did not directly call into question an individual’s physical integrity. The Court concluded from this that, although individuals’ sexual identity was at stake, the States retained considerable room for manoeuvre in deciding whether to impose such a condition. It followed that the respondent State had not failed in its positive obligation to guarantee E. Garçon’s right to private life. The Court concluded that there had not been a violation of Article 8 in that connection.
Lastly, with regard to the obligation to undergo a medical examination, complained of by A.P., the Court noted that the contested examination had been ordered by a judge as part of the evidencegathering process, an area in which the Court granted the States Parties considerable room for manoeuvre. The Court noted that, although the medical report entailed a genital examination, the scope for potential interference in the exercise of his right to respect for private life had to be considered as very relative. That circumstance did not therefore represent a failing by the respondent State to comply with its positive obligation to guarantee A.P.’s right to private life. It followed that there had not been a violation of Article 8 in that connection.
Article 14 taken together with Article 8
The Court noted that this part of the application was admissible. However, having regard to its finding of a violation of Article 8 of the Convention in respect of E. Garçon and S. Nicot on account of the obligation to establish the irreversible nature of the change in their appearance, the Court did not consider it necessary to examine separately the complaint under Article 14 taken together with Article 8.
Article 6 § 1
The Court noted that this part of the application was admissible. It considered, however, that the facts complained of by A.P. did not raise, under Article 6 § 1, any issue distinct from those it had already determined under Article 8. It therefore concluded that it was not necessary to examine this part of the application.
Just satisfaction (Article 41)
The Court considered that, in the circumstances of the case, the finding of a violation of Article 8 of the Convention constituted sufficient just satisfaction, and considered it reasonable to award E. Garçon and S. Nicot, each, 958.40 euros in respect of costs and expenses.
Judge Ranzoni expressed a dissenting opinion. It is annexed to the judgment.