The change of gender in electronic records was not accepted by the courts. Violation of the right to respect for private life
JUDGMENT
P.H. v. Bulgaria 27.09.2022 (app. no. 46509/20)
SUMMARY
The applicant, who felt from an early age that her male gender and its corresponding characteristics did not correspond to how she felt, started in 2015 hormone treatments in order to be able to achieve gender change.
In 2018, she filed an application in the District Court requesting that her name, surname and matrimonial name be changed, as well as that her gender and her police ID number be entered in the electronic registers, so that these data correspond to the new reality and her new gender . This court accepted the applicant’s request, ruling that it was for the courts to apply Article 8 of the Convention. However, the Regional Court overturned this decision. She argued that even if it was shown that the applicant had demonstrated psychological self-determination whereby she defined herself confidently as a woman, the applicable law did not permit a change in the register because the concept of “gender” could not change in the course of her of a person’s life. The applicant appealed but the Court of Cassation dismissed it.
Relying on Article 8 of the Convention, the applicant complained about the legal framework governing gender reassignment in Bulgaria and the refusal of the courts to legally recognize the gender to which she believed herself to belong.
The ECtHR found that, when the District Court overturned the District Court’s decision and rejected the applicant’s claims, it did not pay attention to her reasons, it simply held that a person could not legally be considered to belong to the opposite sex than what emerged from the genital characteristics seen at birth. The Regional Court did not really weigh the public interest on the one hand and the applicant’s right to recognition of her sexual identity on the other. The Court found that the Court of Cassation’s observations did not provide an analysis of the applicant’s individual situation and, in any event, appeared to exceed its powers in the appeal process, which is not intended to consider the facts or specifics of the case.
Thus, by refusing to legally recognize the claimed gender of the applicant, the Regional Court violated her right to respect for private life.
The ECHR found a violation of Article 8 of the ECHR and awarded the applicant 7,500 euros for moral damage and 3,000 euros for legal costs.
PROVISION
Article 8
PRINCIPAL FACTS
On 21 September 2018, she filed an application in the District Court under sections 19, 45, 73 and 27 of the Public Records Act. In particular, she requested that her name, surname and matrimonial name be changed, as well as that her gender and her police ID number be entered in the electronic registers, so that these details correspond to reality and her new gender. In her request she attached medical reports stating her treatment and psychological condition. By decision of February 21, 2019, the court accepted her request. It noted in particular that while Bulgarian law did not allow legal gender reassignment, it was up to the courts to apply Article 8 of the Convention, which permitted such a change when certain conditions were met. Taking into account the evidence in the file, including detailed medical reports, it noted that the applicant had seriously and permanently identified herself as a person belonging to the female gender and concluded that it was appropriate to accept the amendment of her personal data.
Following an appeal by the prosecution, on July 12, 2019, the Regional Court annulled this decision. It stated that even if it was established that the applicant had claimed to have demonstrated psychological self-determination as she had confidently defined herself as female since adolescence and had initiated medical procedures, the applicable law did not permit the change to the register because the concept of “sex” was based on a biological condition observed at birth and not susceptible to modification during the individual’s lifetime. Observing that in the present case, the applicant was found to have normal male genital characteristics at birth, this court held that she could not legally be considered to be a female person, since, on the one hand, the concept of “gender” was genetically determined and not could change between a person’s birth and death and, on the other hand, that a person’s socio-psychological aspiration could not by itself justify the modification of personal status. It pointed out that it was impossible in Bulgarian law to interpret the concept of gender apart from the meaning attributed to it by the Constitution and legislation, namely a biological condition marked at birth, and held that this impossibility was not contrary to Article 8 of the Convention . According to the court, this interpretation was justified by the specific identity of the nation, which was anchored in values based on the Christian religion that had been “built” over the centuries.
The applicant appealed. By decision of April 13, 2020, the Supreme Court of Cassation declared her appeal inadmissible, thus making the district court’s decision irrevocable. The SCC clarified that, contrary to what the applicant claimed, the district court’s decision was in line with the SCC’s jurisprudence, in which it had held, in a decision dated February 14, 2019, that, according to the Constitution, the gender defined at birth from a person’s biological characteristics could not undergo change during a person’s lifetime. The SCC added that previous case law admitting legal gender change in personal status registers has now been overturned. Having reached this conclusion, the SCC noted that in any event, even if it conceded that the legal change of sex could be recognized and that the appeal should be upheld, the physiological change sought by the applicant had not yet become final and objective, and therefore its identification could not be carried out. On the other hand, the applicant could submit a new request when the permanent modification of her biological sex is obtained.
By letter dated 17 June 2022, the applicant informed the Court that she had undergone sex reassignment surgery in Greece, which consisted of changing her male external genitalia to female.
THE DECISION OF THE COURT…
The ECtHR noted that the District Court granted the applicant’s request after analyzing her individual situation and the reasons she claims, applying national law in the light of Article 8 of the ECHR, which appears to correspond to a widespread practice among courts of first and second instance (Y.T. v. Bulgaria). It notes, however, that when the District Court overturned that decision and rejected the applicant’s claims, it did not pay attention to her reasons, it simply held that a person could not legally be considered to be of the opposite sex to that which emerged from the genitalia characteristics that were apparent at birth, that a person’s socio-psychological aspiration could not by itself justify a change in personal status, and that domestic law did not allow the concept of gender to be interpreted as anything other than a biological condition that noted at birth. Thus, while noting, on the basis of the medical certificates, that the applicant had begun a process of sexual transition by altering her physical appearance and that she had identified herself as female for several years, she considered in substance that the public interest required that the legal gender change. It did not develop its reasoning as to the precise nature of this public interest, but limited himself to invoking the existing legal basis and Bulgarian Christian traditions. It did not really weigh, respecting the margin of appreciation enjoyed by the national authorities, the public interest on the one hand and the applicant’s right to recognition of her sexual identity on the other. In those circumstances, the Court cannot conclude that the national court justified its refusal to amend the relevant data from the registers on serious grounds of public interest.
The Court emphasized that the Court of Cassation found the applicant’s appeal inadmissible considering that the District Court’s refusal was in line with its recent jurisprudence, relying in particular on a decision issued in 2019 confirming the impossibility of legally changing a person’s sex. However, the Court noted that the Court of Cassation had issued at least five decisions in favor of legal recognition of gender reassignment, three of which postdate the one it cites. The ECtHR thus emphasized that the Regional Court issued its decision regarding the applicant in a climate of divergent jurisprudence and that the applicant can legitimately claim to suffer from this situation. The Court also noted that, in an obiter dicta that appeared to contradict its own conclusion that the applicant’s appeal should not be upheld, the Court of Cassation stated that even if considered, the normal modification of her sexual characteristics did not had yet to be completed and that legal recognition of gender reassignment was therefore premature. However, this observation does not provide an analysis of the applicant’s individual situation and, in any event, appears to exceed its powers in the appeal procedure, which is not intended to examine the facts or specific elements of the case. Accordingly, since this observation of the Court of Cassation was not decisive in the present case and did not prevent the case from being considered for annulment, it does not in any way change the foregoing and the Court does not consider it necessary to consider it further.
The non-balancing of the individual interests of the applicant with the public interest, in a context of divergent practice of the Supreme Court of Bulgaria, demonstrates, as in the case of Y.T. v. Bulgaria, cited above, the existence of a rigid rationale regarding the recognition of sexual identity. In the present case, this rigidity placed the applicant, for an unreasonable and continuous period, in a distressing situation which caused her unnecessary feelings of vulnerability, humiliation and distress (see mutatis mutandis, Christine Goodwin v. United 28957/95, § § 77 -78, ECHR 2002-VI, and Y.T. v. Bulgaria).
The Court further underlined that there is still pending before the Court of Cassation a decision concerning gender reassignment. It recalled in this regard the need to refer to the recommendations of international bodies, in particular the Committee of Ministers and the Parliamentary Assembly of the Council of Europe, as well as the United Nations High Commissioner for Human Rights, regarding measures to combat discrimination based on sexual orientation or gender identity, among which is the recommendation to states to allow name and gender changes on official documents in a fast, transparent and accessible manner (Y.T. v. Bulgaria).
This evidence is sufficient to conclude that by refusing to legally recognize the applicant’s claimed gender without giving sufficient and relevant reasons, the Regional Court unjustifiably interfered with her right to respect for her private life.
The ECtHR found a violation of Article 8 of the ECHR.
Just satisfaction (Article 41)
The Court awarded 7,500 euros for moral damage and 3,000 euros for legal costs (edited by: echrcaselaw.com).
