Guide on Article 8 of the Convention – Right to respect for private and family life
270. More recently, in a case where a transgender applicant complained about the lack of a regulatory framework for legal recognition and the alleged requirement that such recognition be conditional on complete sex reassignment surgery, the Court ruled that the lack of “quick, transparent and accessible procedures” for changing the registered sex of transgender people on the birth certificates had resulted in violation of Article 8 (X v. the former Yugoslav Republic of Macedonia, § 70). The State has failed to comply with its positive obligation to put in place an effective and accessible procedure, with clearly defined conditions securing the applicant’s right to respect for his private life, as concerns his application for the sex/gender marker to be altered in the civil status register. 271. In Y.T. v. Bulgaria, the Court held that the refusal to allow a transsexual to have his change of sex recorded in the civil-status register, although his physical appearance and social and family identity had been altered for a long time, constituted a violation of his right to private life. In particular, the domestic courts failed to provide relevant and sufficient reasons for the refusal and to explain why in other cases such a gender reassignment could be recognised (§ 74). 272. Another important issue concerns the access to gender reassignment surgery and other treatments for transgender people. Although the Court has not found a general right to access such treatment (Y.Y. v. Turkey, § 65), it has found that procedures which deny insurance coverage for such treatment may violate Article 8 (Van Kuck v. Germany, §§ 82-86; Schlumpf v. Switzerland, § 115-116). In the case of Schlumpf, the Court stated that the State has a limited margin of appreciation in relation to a question concerning one of the most intimate aspects of private life, being the sexual identity of an individual (§§ 104 and 115). In the latter case, in view of the applicant’s very particular situation – she had been over 67 years old when she requested the State to pay for the operation – the State should not have applied mechanically the two-year waiting period as required by the law. The Court concluded that a fair balance had not been struck between the insurance company’s and the applicant’s interests (§ 115). 273. Regarding the question of gender reassignment surgery, in Y.Y. v. Turkey, the applicant sought authorisation to undergo such surgery. This was refused by Turkey because the applicant did not satisfy the prior requirement of permanent inability to procreate (§ 44). The Court found that in denying the applicant the possibility of undergoing gender reassignment surgery for many years the State had breached his right to respect for his private life (§§ 121-122). 274. With respect to transgender parenthood, A.M. and Others v. Russia highlighted several elements to be factored in when assessing the restriction of transgender’s parental rights and deprivation of contact with children following gender transitioning (see §§ 53-61).
8. Right to ethnic identity44 275. The Court has considered ethnic identity, in particular the right of members of a national minority to maintain their identity and to lead a private and family life in accordance with their tradition, to constitute part of the Article 8 right to private and family life, with a consequent obligation placed upon States to facilitate, and not obstruct disproportionately, the traditional lifestyles of minorities. Referring to its recent considerations about the positive and negative aspects of the right to free self-identification of members of national minorities in international law — not only in the Council of Europe Framework Convention for the Protection of National Minorities —, the Court reiterated that any member of a national minority had a full right to choose not to be treated as such 44
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European Court of Human Rights
66/161
Last update: 31.08.2021
