Self determination of transgender persons regarding the name choice. Justice from the Court
JUDGMENT
S.V. v. Italy 11.10.2018 (no. 55216/08)
SUMMARY
The case concerned the Italian authorities’ refusal to authorise a transgender person with a female
appearance to change her male forename, on the grounds that no final judicial ruling had been given
confirming gender reassignment.
In May 2001 the Rome District Court authorised S.V. to undergo gender reassignment surgery.
However, under the legislation in force at the time, she was unable to change her forename until the
court confirmed that the surgery had been performed and gave a final ruling on her gender identity,
which it did on 10 October 2003.
The Court observed at the outset that this issue came entirely within the scope of the right to
respect for private life. It went on to find that S.V.’s inability to obtain a change of forename over a
period of two and a half years, on the grounds that the gender transition process had not been
completed by means of gender reassignment surgery, amounted to a failure by the State to comply
with its positive obligation to secure the applicant’s right to respect for her private life.
In the Court’s view, the rigid nature of the judicial procedure for recognising the gender identity of
transgender persons, as in force at the time, had left S.V. – whose physical appearance and social
identity had long been female – for an unreasonable period of time in an anomalous position apt to
engender feelings of vulnerability, humiliation and anxiety. Lastly, the Court observed that the
legislation had been amended in 2011, with the result that a second court ruling was no longer
required and amendment of the civil-status records could now be ordered by the judge in the
decision authorising the gender reassignment surgery.
USE-COMMENT
This is the first time that the ECtHR deals with such a subject. The Court incorporates gender identity change and self-determination into respect for privacy within the scope of Article 8 of the ECHR. The applicant wanted to resort to surgery to harmonize her physical appearance with her sexual identity and had obtained a surgical surgical authorization. Therefore, contrary to the AP, Garçon and Nicot et al., decision of 6 April 2017, which attempted to interfere with the natural integrity of the applicant in breach of Article 8, that was not the case here. The ECtHR was asked to determine whether the refusal by the authorities to allow the applicant to change her name during the gender transition process and before completing the surgery constituted a disproportionate violation of the right to respect for her private life. It rightly held that the refusal of the Italian authorities to modify her name so as not to be humiliated and to be in harmony with its outward appearance for a period of 2.5 years violated the positive obligation of the State to guarantee the right to respect for its private life, which was violated.
It is an important and positive decision which further safeguards the rights of transgender persons to enjoy an equal position in society.
PROVISIONS
Article 8
Article 14
PRINCIPAL FACTS
The applicant, S.V., is an Italian national who was born in 1965 and lives in Ostia Lido (Italy). At birth, S.V. was entered in the civil-status registers as male and was given the forename L. However, the applicant identified as female and lived in society as a woman under the forename S. Furthermore, her work colleagues had called her S. since 1999, and in the photograph on her identity card issued in 2000 her appearance was that of a woman. In 1999 S.V. began treatment with feminising hormones as part of the gender transition process. In 2001 the Rome District Court authorised the applicant to undergo gender reassignment surgery.
In 2001, while awaiting the operation, S.V. applied to the prefect of Rome for a change of forename, stating that in view of her physical appearance, the fact that her identity papers contained a male forename was a permanent source of humiliation and embarrassment. The prefect refused the request on the grounds that, in the absence of a final judicial ruling confirming the gender reassignment (Law no. 164 of 1982), the applicant’s forename could not be changed. As a result, S.V. had to wait until the court confirmed that the surgery, carried out on 3 February 2003, had been performed and it gave a final ruling on her gender identity. Following the District Court judgment of
10 October 2003 the Savona municipal authorities changed the indication of S.V.’s gender and her
forename.
THE DECISION OF THE COURT
Article 8 (right to respect for private and family life)
The Court observed that the case concerned the inability of a transgender person to obtain a change of forename before completing the gender transition process by means of gender reassignment surgery. This issue came entirely within the scope of the right to respect for private life, and the “private life” aspect of Article 8 of the Convention was applicable.
The Court went on to note that, on 10 May 2001, the Rome District Court had authorised S.V.’s surgery. However, S.V. had been unable to change her forename until the court confirmed that the surgery had been performed and gave a final ruling on her gender identity, which it did on 10 October 2003.
The Court did not call into question the choice made by the Italian legislature to entrust decisions on changes to the civil-status register concerning transgender persons to the judicial rather than the administrative authority. Moreover, it fully accepted that the principle of the inalienability of civil status, the consistency and reliability of civil-status records and, more broadly, the need for legal certainty, were in the public interest and justified putting in place stringent procedures aimed, in particular, at verifying the underlying motivation for requests to change legal identity.
However, it noted that the refusal of S.V.’s request had been based on purely formal arguments that took no account of the applicant’s specific situation. Hence, the authorities had not taken into consideration the fact that S.V. had been undergoing a gender transition process for a number of years and that her physical appearance and social identity had long been female. In those circumstances the Court failed to see what reasons in the public interest could have justified a delay of over two and a half years in bringing the forename on S.V.’s official documents into line with the reality of her social situation, which had been acknowledged by the Rome District Court in its
judgment of 10 May 2001. Thus, the rigid nature of the judicial procedure for recognising the gender
identity of transgender persons, as in force at the time, had left S.V. for an unreasonable period of
time in an anomalous position apt to engender feelings of vulnerability, humiliation and anxiety. In
that regard the Court referred to Recommendation CM/Rec(2010)5 on measures to combat
discrimination on grounds of sexual orientation or gender identity, in which the Committee of
Ministers had urged States to make possible the change of name and gender in official documents in
a quick, transparent and accessible way.
Consequently, the Court considered that S.V.’s inability to obtain a change of forename over a period of two and a half years, on the grounds that the gender transition process had not been completed by gender reassignment surgery, amounted in the circumstances of the case to a failure on the part of the respondent State to comply with its positive obligation to secure the applicant’s right to respect for her private life. There had therefore been a violation of Article 8 of the Convention.
Lastly, the Court observed that Legislative Decree no. 150 of 2011 had amended section 3 of Law no. 164 of 1982. As a result, a second court ruling was no longer required in proceedings to confirm the gender reassignment of persons who had undergone surgery, and the amendment of the civil-status records could now be ordered by the judge in the decision authorising the surgery.
Article 41 (just satisfaction)
The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by S.V. It further held that Italy was to pay the applicant 2,500 euros (EUR) in respect of costs and expenses(echrcaselaw.com editing).
