In today’s Chamber judgment1 in the case of X and Y v. Romania (applications nos. 2145/16 and 20607/16) 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 the situation of two transgender persons whose requests for recognition of their gender identity and for the relevant administrative corrections to be made were refused on the grounds that persons making such requests had to furnish proof that they had undergone gender reassignment surgery.
The Court observed that the national courts had presented the applicants, who did not wish to undergo gender reassignment surgery, with an impossible dilemma: either they had to undergo the surgery against their better judgment – and forego full exercise of their right to respect for their physical integrity – or they had to forego recognition of their gender identity, which also came within the scope of respect for private life. In the Court’s view, this upset the fair balance to be struck by the States Parties between the general interest and the individual interests of the persons concerned.
The Court held that the domestic authorities’ refusal to legally recognise the applicants’ gender reassignment in the absence of surgery amounted to unjustified interference with their right to respect for their private life.
Principal facts
The applicants, X and Y, are Romanian nationals who were born in 1976 and 1982 respectively and live in the United Kingdom and in Bucharest (Romania). At the time their applications were lodged they were entered in the civil-status records as female.
On 21 July 2013, X (application no. 2145/16) brought an action in the District Court against the local council for the first district of Bucharest, requesting the court to authorise a gender reassignment from female to male and an administrative change of forename and personal digital identity code, and to order the district council to make the necessary changes in the civil-status register and issue a birth certificate indicating the applicant’s new forename and male gender. He produced three medical certificates in support of his request, noting and confirming that he suffered from a gender identity disorder.
The court entered an objection of inadmissibility of its own motion in respect of the first request and a further objection to the effect that the other requests were premature. In his observations X argued that the purpose of the action was not to obtain authorisation for gender reassignment treatment, still less surgery – which, in his view, constituted serious interference with an individual’s physical integrity – but rather to obtain permission to have the civil-status records amended. He added that no doctor in Romania was prepared to carry out gender reassignment surgery without a court order authorising it. As to the allegedly premature nature of the other requests, he argued that requiring proof of gender reassignment surgery before authorising changes to the civil-status records amounted to unjustified interference with the exercise of sexual autonomy and with respect for the individual’s physical integrity.
On 12 June 2014 the District Court dismissed the action. X lodged an appeal. On 9 March 2015 the Bucharest County Court dismissed the appeal, endorsing the District Court’s findings in full. In August 2014 X moved to the United Kingdom and in April 2015 obtained male forenames by deed poll. He maintains that he has suffered constant inconvenience owing to the mismatch between the female identifiers on the papers issued by the Romanian authorities and the male identifiers on the various documents obtained in the United Kingdom.
On 14 December 2011, Y (application no. 20607/16) brought an action in the District Court against the local council for the third district of Bucharest, seeking authorisation to undergo female-to-male gender reassignment surgery, a change of forename on the relevant administrative documents and a change of personal digital identity code. Y requested the court to instruct the local council to make the necessary amendments to the civil-status register and to issue a new birth certificate giving the applicant’s new forename and indicating his gender as male.
On 23 May 2013 the court stated that once the gender reassignment surgery had been performed the applicant would be entitled to apply to the administrative authorities for a change of forename. On 3 July 2014 Y brought another action similar to the first but without requesting authorisation for gender reassignment surgery. The District Court dismissed the action on the grounds that no gender reassignment surgery had been performed. Y appealed to the County Court, which dismissed the appeal.
In June 2017 Y underwent surgery to remove the internal female reproductive organs. This was followed on 17 October 2017 by an operation to construct male external genitalia. On 7 August 2017 he brought a further action in the courts. On 21 November 2017 the District Court allowed the action, authorised the change of gender on the applicant’s identity papers, the change of forename and the amendment of the applicant’ digital identity code. Lastly, it ordered the local council to make the necessary alterations to the civil-status records and to issue a new birth certificate. The court also noted that the applicant, who had been diagnosed by doctors as transgender, had undergone gender reassignment surgery. On 3 May 2018 Y was issued with a new identity card indicating a male forename and digital identity code and giving his gender as male. On 6 June 2018 he obtained a new birth certificate matching the details on his new identity card.
Complaints, procedure and composition of the Court
Relying on Article 8 (right to respect for private and family life) and, in the case of X, on Article 3 (prohibition of inhuman or degrading treatment), the applicants complained that the Romanian State had not established a clear framework for the legal recognition of gender reassignment. In their view, the requirement for them to undergo gender reassignment surgery – with the attendant risk of sterilisation – as a prerequisite for a change in their civil status had breached their right to respect for their private life. They contended that this requirement amounted to interference without any legal basis which did not pursue a legitimate aim and was not necessary in a democratic society. Under Article 6 (right to a fair hearing), X argued that the reclassification of his action by the national courts amounted to a denial of justice. Relying on Article 13 (right to an effective remedy), he maintained that he had not had an effective remedy by which to complain of the alleged violations of Articles 3 and 8 of the Convention. Under Article 14 (prohibition of discrimination), he alleged that requiring transgender persons to undergo gender reassignment surgery in order to have their civil-status records amended constituted discrimination based on gender identity compared with individuals whose gender identity matched their assigned gender and whose gender had been legally recognised at birth without any further conditions attached. He regarded this as a breach of his right to equal recognition before the law. Lastly, he alleged a violation of his rights under Article 12 (right to marry), in view of the sterilising effect of the surgery required by the authorities.
The application was lodged with the European Court of Human Rights on 19 December 2015. Judgment was given by a Chamber of seven judges, composed as follows:
Yonko Grozev (Bulgaria), President,
Faris Vehabović (Bosnia and Herzegovina), Iulia Antoanella Motoc (Romania), Gabriele Kucsko-Stadlmayer (Austria), Pere Pastor Vilanova (Andorra),
Jolien Schukking (the Netherlands),
Ana Maria Guerra Martins (Portugal),
and also Ilse Freiwirth, Deputy Section Registrar.