In today’s Chamber judgment in the case of Y.T. v. Bulgaria (application no. 41701/16) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
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.
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 civil- status 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.