Imprecision of domestic legislation for gender changes in civil-status records in Georgia
JUDGMENT
A.D. and others v. Georgia 1.12.2022 (app. no. 57864/17)
SUMMARY
The applicants are transgender men (assigned female at birth). The case concerned their complaints
that they had been unable to obtain legal recognition of their gender because they had not
undergone sex reassignment surgery.
The Court found in particular that, despite the fact that the right to have one’s sex changed in civil status records had existed in Georgia since 1998, there had not apparently been one single case of successful legal gender recognition. The imprecision of the current domestic legislation undermined the availability of legal gender recognition in practice, and the lack of a clear legal framework left the
domestic authorities with excessive discretionary powers, which could lead to arbitrary decisions in the examination of applications. Such a situation was fundamentally at odds with the respondent State’s duty to provide quick, transparent and accessible procedures for legal gender recognition.
PROVISION
Article 8
PRINCIPAL FACTS
The applicants, A.D., A.K. and Nikolo Ghviniashvili (“the third applicant”), are Georgian nationals who
were born in 1979, 1988 and 1973 respectively. They are transgender men (assigned female at
birth).
Following successful applications to the Civil Status Agency between 2011 and 2015, their forenames
were changed from traditionally female names to traditionally male ones in their civil-status records.
They also received medical certificates from psychologists diagnosing them with “gender identity
disorder (transsexualism)”.
Backed by those certificates, between December 2014 and April 2015 each of the three applicants
requested legal gender recognition – that is to have their gender changed in their civil-status records
from female to male. Prior to that, A.K. and the third applicant had undergone hormonal treatment
to increase testosterone levels and A.K. had had a mastectomy. Their requests were rejected by the
agency on the ground that they had not shown that they had undergone medical sex reassignment
procedures.
The applicants lodged complaints with the courts. During the court proceedings, the agency
acknowledged that domestic law did not define which exact medical procedures were necessary or
what kind of medical proof was required in order for a “change of sex” to take place within the
meaning of the Civil Status Act of 20 December 2011. However, it maintained that a medical certificate proving that their biological and/or physiological sex characteristics had been changed was necessary.
The Tbilisi City Court dismissed their complaints, reasoning that gender self-identification was not
sufficient, since a precondition for changing the gender in the civil-status records was, according to
the Civil Status Act of 20 December 2011, sex reassignment. As none of the applicants had
undergone any of the existing sex reassignment procedures, their request for legal gender
recognition could not be allowed. Whilst the court stipulated that the applicant’s sex could be
changed by way of medical procedures, it did not specify exactly what those procedures were.
However, it concluded that only post-operative transgender people were entitled, after changing
sex, to obtain legal gender recognition.
Appeals on points of law lodged by A.D. and A.K. were rejected by the Supreme Court in late 2016
and early 2017.
At the main hearing, in July 2017, of an appeal lodged by the third applicant at the Tbilisi Court of
Appeal, one of the judges asked the relevant domestic authority which exact medical procedures he
would have to undergo in order to be able to prove a change of sex, whether those could only be
carried out by means of surgical intervention or whether some other, less intrusive, procedures
might suffice and whether, in that connection, there was a need for further precisions to be
introduced into the domestic law. The reply given was that the domestic law was already clear about
what constituted a change of sex, and that it could be achieved by means of “surgical procedures”.
In October 2017, the appeal was dismissed. The court wrote that, although several European
countries had opted for allowing a change of gender in civil-status records on the basis of a person’s
gender self-identification, Georgian law was clear in making the matter contingent upon sex
reassignment “by means of surgery”. It went on to specify that it was important “for any medical
procedures undertaken with the aim of changing sex to have an irreversible impact, and this
irreversibility cannot be achieved by means of hormonal treatment only. … The change of a
secondary sex characteristic cannot in and of itself show a change of sex.”
The third applicant’s further appeal on points of law was dismissed by the Supreme Court essentially
because he had not presented any medical certificate attesting that the hormonal treatment he had
received was irreversible. Another reason given was that the Constitution did not recognise same sex marriages and if transgender people were allowed to have their gender changed on their identity documents solely on the basis of their gender self-identification, that could potentially result in leeway for same-sex couples to marry, which would constitute a breach of the Constitution.
THE DECISION OF THE COURT…
Under Article 8 of the Convention, the Court’s case-law on legal gender recognition had already
found that member States were expected to provide quick, transparent and accessible procedures
for changing the registered sex of transgender persons.
The Court observed that, not only was the right to have one’s sex changed in civil-status records
enshrined in law in Georgia, but it was also interpreted as forming part of the constitutional right to
free development of personality under Article 12 of the Constitution. However, despite the fact that
such a right had existed in the country since 1998, there had not apparently been one single case of
successful legal gender recognition.
The Court accepted that legal gender recognition had to be regulated in order to safeguard the
principle of civil status, the consistency and reliability of civil-status records and, more broadly, the
need for legal certainty. However, whilst the right to have one’s sex changed in civil-status records
existed in Georgia, the law did not clearly indicate the terms and conditions to be fulfilled for legal
gender recognition to take place. The Government had also omitted to address the Court’s specific
question regarding the exact medical procedures required for the purposes of legal gender
recognition. The Court found therefore that domestic law and practice did not provide any indication
of the exact nature of the medical procedures to be followed.
It also observed that the Government put forward that the expression “change of sex” in the Civil
Status Act had to be assessed on “biological, physiological and/or anatomical criteria”. However, the
utmost care and precision was required when using such different terms interchangeably, because
each of those terms had its own particular meaning and entailed distinct legal implications. For
instance, if “change of sex” was to be defined on the basis of biological criteria, then it would never
be possible to obtain legal gender recognition, as chromosomes could not be changed by any
amount of medical intervention.
The Court noted also that there was a clear contradiction in how the domestic courts had handled
the third applicant’s case. Whilst the Court of Appeal had stated that the completion of hormonal
treatment, with the resulting change in secondary sex characteristics, was not sufficient for legal
gender recognition, the Supreme Court had suggested the contrary, notably that a medical
certificate attesting to the “irreversibility” of the hormonal treatment was sufficient.
The Court found that the inconsistencies in the reading of the domestic law by the domestic courts
were conditioned, at least in part, by the fact that the law itself was not sufficiently detailed and
precise. The imprecision of the current legislation undermined the availability of legal gender
recognition in practice, and the lack of a clear legal framework left the domestic authorities with
excessive discretionary powers, which could lead to arbitrary decisions. Such a situation was
fundamentally at odds with the State’s duty to provide quick, transparent and accessible procedures
for legal gender recognition.
The Court concluded that there had been a violation of Article 8 of the Convention.
Just satisfaction (Article 41)
The Court held that Georgia was to pay each of the applicants 2,000 euros (EUR) in respect of nonpecuniary damage and EUR 9,812.86 to the third applicant in respect of costs and expenses.
