8. Right to ethnic identity

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 See also Home.

(Tasev v. North Macedonia, §§ 32-33). The right to free self-identification is the “cornerstone” of international law on the protection of minorities in general. This applies especially to the negative aspect of the right: no bilateral or multilateral treaty or other instrument requires anyone to submit against his or her wishes to a special regime in terms of protection of minorities (§ 33). 276. The Court has found that the authorities’ refusal to register an individual’s ethnicity as declared by the individual constituted a failure to comply with the State’s positive obligation to secure to the applicant the effective respect for his private life (Ciubotaru v. Moldova, § 53). The conducting of a meaningful inquiry into the discrimination behind an event that formed part of a general hostile attitude against the Roma community and the implementation of effective criminal law mechanisms are also considered to be part of the positive obligation of a State to protect respect for ethnic identity (R.B. v. Hungary, §§ 88-91). 277. In the specific context of demonstrations motivated by hostility towards an ethnic group, mostly involving intimidation rather than physical violence, the Court drew inspiration from the principles established in cases concerning Article 10 of the Convention. Thus, the key factors to determine are whether the offending statements were made against a tense political and social background, whether they amounted to a direct or indirect call for violence, hatred or intolerance, and their capacity to lead to harmful consequences (Király and Dömötör v. Hungary, §§ 72 et seq). A legal framework should be in place for criminalising antiminority demonstrations and should afford effective protection against harassment, threats and verbal abuse; otherwise, there may be a perception that the authorities tolerate such verbal intimidation and disturbances (§ 80). 278. The Court found that there had been a violation of Article 8 taken in conjunction with Article 14 in a case where the authorities had failed to protect the applicants from an attack on their homes, had a certain role in the attack, where there was no effective domestic investigation, and taking into account the general background of prejudice against Roma in the country (Burlya and Others v. Ukraine, §§ 169-170). 279. The occupation by a Gypsy woman of her caravan was found to comprise an integral part of her ethnic identity, one which the State should take into account when instituting measures of forced eviction from the land (Chapman v. the United Kingdom [GC], § 73; McCann v. the United Kingdom, § 55). In Hirtu and Others v. France, as regards the eviction of Roma from an unauthorised camp, the Court also stated that national authorities, when carrying out the proportionality assessment, must take into account that Roma belong to a socially disadvantaged group and that they have particular needs in that respect (§ 75). The Court also found an Article 8 violation on procedural grounds as a result of a family’s summary eviction from the local authority caravan site where the applicant and his family had lived for more than 13 years; the Court stated that such a serious interference necessitated “particularly weighty reasons of public interest” and a narrow margin of appreciation (Connors v. the United Kingdom, § 86). However, the Court has in the past found that national planning policies may displace caravan sites if a fair balance is struck between the individual rights of the families living in the site and the environmental (and other) rights of the community (Jane Smith v. the United Kingdom [GC], §§ 119-120; Lee v. the United Kingdom [GC]; Beard v. the United Kingdom [GC]; Coster v. the United Kingdom [GC]). 280. The Court has found that the authorities’ continued retention of applicants’ fingerprints, cellular samples, and DNA profiles after criminal proceedings against them had ended and the usage of those data to infer ethnic origin implicated and violated the applicants’ right to ethnic identity under Article 8 (S. and Marper v. the United Kingdom [GC], § 66). 281. The Court has also found that any negative stereotyping of a group, when it reaches a certain level, is capable of impacting the group’s sense of identity and the feelings of selfworth and selfconfidence of members of the group. In this sense it can be seen as affecting the private life of members of the group (Aksu v. Turkey [GC], §§ 58-61 where the applicant, who is of Roma origin, felt offended by certain passages of the book “The Gypsies of Turkey”, which focused on the Roma community;