Guide on Article 8 of the Convention – Right to respect for private and family life
v. Switzerland, § 24). It has also found a violation of Article 8 where the domestic authorities’ refused to allow two Turkish men to change their surnames to names which were not “of Turkish language”, since the courts had conducted a purely formalistic examination of the legislative and statutory texts instead of taking into account the arguments and the specific and personal situations of the applicants, or balancing the competing interests at stake (Aktaş and Aslaniskender v. Turkey). 260. The Court has held that forenames also fall within the ambit of “private life” (Guillot v. France, §§ 21-22; Güzel Erdagöz v. Turkey, § 43; Garnaga v. Ukraine, § 36). However, the Court has found that some laws relating to the registration of names strike a proper balance, while others do not (compare Guillot v. France, with Johansson v. Finland). In relation to a change of name in the process of gender reassignment, see S.V. v. Italy, §§ 70-75 (under Gender identity below). 261. The Court has ruled that the tradition of demonstrating family unity by obliging married women to adopt the surname of their husbands is no longer compatible with the Convention (Ünal Tekeli v. Turkey, §§ 67-68). The Court has found a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 as a result of discriminatory treatment on the part of the authorities’ refusal to let a binational couple keep their own surnames after marriage (Losonci Rose and Rose v. Switzerland, § 26). The mere fact that an existing name could take on a negative connotation does not mean that the refusal to permit a change of name will automatically constitute a breach of Article 8 (Stjerna v. Finland, § 42; Siskina and Siskins v. Latvia (dec.); Macalin Moxamed Sed Dahir v. Switzerland (dec.), § 31). 262. As concerns the seizure of documents needed to prove one’s identity, the Court has found an interference with private life as a result of a domestic court’s withholding of identity papers following the applicant’s release from custody, as papers were needed often in everyday life in order to prove one’s identity (Smirnova v. Russia, §§ 95-97). The Court has also held, however, that a government may refuse to issue a new passport to a citizen living abroad, if the decision is one made because of public safety, even if the failure to issue a new passport will have negative implications for the applicants’ private and family life (M. v. Switzerland, § 67).
7. Gender identity 263. Under Article 8, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings (Christine Goodwin v. the United Kingdom [GC], § 90). Article 8 is applicable to the question of the legal recognition of the gender identity of transgender people who have undergone gender reassignment surgery (Hämäläinen v. Finland, [GC], § 68), the conditions for access to such surgery (L. v. Lithuania, § 56-57; Schlumpf v. Switzerland, § 107; Y.Y. v. Turkey, §§ 65-66), and the legal recognition of the gender identity of transgender people who have not undergone, or do not wish to undergo, gender reassignment treatment (A.P., Garçon and Nicot v. France, §§ 95-96). 264. The Court has dealt with a series of cases concerning the official recognition of transgender people post gender reassignment surgery in the United Kingdom (Rees v. the United Kingdom; Cossey v. the United Kingdom; X, Y and Z v. the United Kingdom; Sheffield and Horsham v. the United Kingdom; Christine Goodwin v. the United Kingdom [GC]; I. v. the United Kingdom [GC]). In the cases of Christine Goodwin and I v. the United Kingdom, the Court found a violation of Article 8 notably on the basis that a European and International consensus existed favoring the legal recognition of a transgender person’s acquired gender. The Goodwin case raised the issue of whether or not the respondent State had failed to comply with a positive obligation to ensure the right of the applicant, a post-operative male to female transgender, to respect for her private life, in particular through the lack of legal recognition given to her gender reassignment. The Court held that there has been a failure to respect the applicant’s right to private life since there were no significant factors of public interest to weigh against the interest of the applicant in obtaining legal recognition of her gender reassignment (§ 93).
European Court of Human Rights
64/161
Last update: 31.08.2021
