Rejection of a transgender’s request for a change of his name and gender. Violation of the right to privacy

JUDGMENT

Y.T. v. Bulgaria 09.07.2020  (no. 41701/16)

see here 

SUMMARY

The case concerned a transsexual (Y.T.) who had taken steps to change his physical appearance and
whose request for (female to male) gender reassignment had been refused by the Bulgarian courts.
He claimed that he had become aware of his male gender identity during adolescence and that he
had lived in society as a man.

The Court found that the judicial authorities had established that Y.T. had begun a process of gender
transition, changing his physical appearance, and that his social and family identity had already been
that of a male for a long time. Nonetheless, they had considered that the public interest required
that the legal change of sex should not be permitted, without specifying the exact nature of this
public interest, and had not balanced this interest against Y.T.’s right to legal recognition of his
gender identity.

The Court identified this as rigidity in the domestic courts’ reasoning, which had placed Y.T. – for an
unreasonable and continuous period – in a troubling position, in which he was liable to experience
feelings of vulnerability, humiliation and anxiety. The domestic authorities’ refusal to grant legal
recognition to Y.T.’s gender reassignment, without giving relevant and sufficient reasons, and
without explaining why it had been possible to recognise identical gender reassignment in other
cases, had thus constituted an unjustified interference with Y.T.’s right to respect for his private life.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Y.T., is a Bulgarian national who was born in 1970 and lives in Stara Zagora (Bulgaria).
At his birth, Y.T. was recorded in the civil-status registers as female, with a corresponding female
forename. However, he claims that he became aware of his male gender identity during adolescence
and that he has lived in society as a man with a male forename and surname.

Y.T. has been co-habiting since 2008 with a woman, who gave birth to a child in 2010 via donor
insemination. Y.T. and the child consider each other as father and son. In the photograph on his
identity card, issued in 2011, Y.T.’s appearance was that of a man.

In 2014, in the context of his gender transition process, Y.T voluntarily underwent surgery to remove
his mammary glands and parenchymal tissue.

In 2015 he applied to the district court, asking that his forenames, patronymic and family name be
changed in the electronic civil-status registers, together with the indication of his sex and his civil identification number; he considered that the data recorded in the register did not correspond to
reality. His request was rejected by the district court and Y.T. lodged an appeal.

In 2016 the regional court upheld the first-instance judgment. It considered, among other points,
that surgical operations did not change a person’s true sex but only his or her appearance and the
morphology of sex.

THE DECISION OF THE COURT….

Article 8 (right to respect for private and family life)

The Court noted, firstly, that the legal framework applied in the present case had enabled Y.T. to
lodge and have examined the merits of his request concerning his gender reassignment. The
applicant wished to undergo an operation to complete the process of gender reassignment but this
could only take place following prior recognition of this reassignment by a judicial decision. Y.T. did
not claim that he had been required to undergo the surgery against his will or solely in order to
obtain legal recognition of his gender identity. On the contrary, he sought to have surgery in order
for his physical appearance to match his gender identity. The case did not therefore concern
interference with his right to respect for his physical integrity.

The Court then found that it was required to determine whether the courts’ refusal to grant the
applicant’s requests for an amendment to the entry concerning his sex in the civil-status registers
had amounted to a disproportionate interference with his right to respect for his private life.

It held, in the present case, that the domestic courts had noted that Y.T. was transsexual on the basis
of detailed information concerning his psychological and medical state, together with his family and
social lifestyle. However, the courts had refused to authorise a change to the “sex” entry in the civilstatus
registers. The reasoning for their decisions referred to various arguments and was based on
three essential elements. Firstly, the courts expressed the conviction that gender reassignment was
not possible where the individual had been born with opposing sexual physiological characteristics.

Secondly, they held that an individual’s socio-psychological aspiration could not in itself be sufficient
to grant a request for gender reassignment. Lastly, the domestic law did not provide for any criteria
that would allow for such reassignment for legal purposes. With regard to this last point, the
regional court had expressly stated that it attached no importance to the case-law trend to the
effect that it was appropriate to recognise gender reassignment independently of whether medical
treatment had been followed in advance.
Thus, the judicial authorities had established that Y.T. had begun a process of gender transition,
changing his physical appearance, and that his social and family identity had already been that of a
male for some time. Nonetheless, they had considered, in essence, that the public interest required
that the legal change of sex should not be permitted, and had then rejected his request. However,
the courts had given no explanation of their reasoning as to the exact nature of this public interest,
and had not balanced it against the applicant’s right to legal recognition of his gender identity.

In those circumstances, the Court failed to identify what public-interest grounds could have justified
the refusal to ensure that Y.T.’s male condition corresponded with the relevant entry referring to
that condition in the civil-status registers. The Court identified this as rigidity in the reasoning with
regard to recognition of Y.T.’s gender identity, which had placed him, for an unreasonable and
continuous period, in a troubling position, in which he was liable to experience feelings of
vulnerability, humiliation and anxiety.

In consequence, the Court concluded that the domestic authorities’ refusal to grant legal recognition
to Y.T.’s gender reassignment, without giving relevant and sufficient reasons, and without explaining
why it had been possible to recognise the same gender reassignment in other cases, had constituted
an unjustified interference with the applicant’s right to respect for his private life. There had
therefore been a violation of Article 8 of the Convention.

Just satisfaction (Article 41)

The Court held that Bulgaria was to pay the applicant 7,500 euros (EUR) in respect of non-pecuniary
damage and EUR 4,150 in respect of costs and expenses.


ECHRCaseLaw

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