7. Gender identity

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).

265. The Court has recognised that, in the twenty-first century, the right of transgender people to personal development and to physical and moral security in the full sense enjoyed by others in society could not be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transgender people lived in intermediate zone as not quite one gender or the other was no longer sustainable (Christine Goodwin v. the United Kingdom, § 90; Grant v. the United Kingdom, § 40; L. v. Lithuania, § 59). 266. However, Member States possess a margin of appreciation when it comes to rule on the changing of a transgender’s identity on official documents. In Hämäläinen v. Finland [GC], the applicant complained that the full recognition of her new gender was made conditional on the transformation of her marriage into a registered partnership. The Court noted that in this case, Article 8 was found to apply under both its private life and family life aspects (§§ 60-61). The Court held that the refusal of the State to recognise the applicant’s female identity following sex change unless her marriage was transformed into a civil partnership was not disproportionate. Indeed, the Court reiterated that the Convention did not impose general obligation on the States to allow same-sex marriage. Therefore in the absence of a European consensus and given the sensitive moral and ethical issues at stake, Finland had to be afforded a wide margin of appreciation both on enacting or not legislation concerning legal recognition of the new gender of post-operative transgender people and on establishing the rules striking a balance between competing private and public interests or Convention rights (§ 67). 267. Concerning the legal recognition of transgender person’s gender identity, the Court held in A.P., Garçon and Nicot v. France that making such recognition conditional on sterilisation surgery or treatment (the “sterility requirement”), which they did not wish to undergo, amounted to making the full exercise of their right to respect for their private life conditional on their relinquishing the full exercise of their right to respect for their physical integrity as protected not only by Article 8 but also by Article 3 of the Convention (§ 131), this being in breach of their right to respect for their private life (§ 135) (and compare X and Y v. Romania, §§ 160-161). In fact, the State enjoyed only a narrow margin of appreciation on the sterility requirement for two reasons: firstly, the condition that the change in one’s appearance be irreversible touches an essential aspects of an individual’s intimate identity, and even of his or her existence; secondly, a trend had emerged in Europe in recent years with regard to abandoning this criterion of sterility. However, the Court found that, within its wide margin of appreciation, the State could require a prior diagnosis of “gender dysphoria syndrome” (§§ 139-143) and the performance of a medical examination confirming gender reassignment (§§ 150-154). 268. In the case of S.V. v. Italy, the authorities refused to authorise a change of the applicant’s forename prior to the completion of gender reassignment surgery. The Court held that the refusal was based on purely formal grounds and did not take into consideration that the applicant had been undergoing a gender transition process for a number of years resulting in a change in physical appearance and social identity (§§ 70-75). According to the Court, the rigid nature of the judicial procedure for recognising the gender identity of transgender people had left the applicant for an unreasonable period of time – two and a half years – in an anomalous position apt to engender feelings of vulnerability, humiliation and anxiety (§ 72). 269. In the specific case of L. v. Lithuania, a transgender applicant underwent partial reassignment surgery since the full surgery could not be completed in the absence of adequate legal regulation. Then, until he underwent the full surgery, his personal code on his new birth certificate, passport and university diploma would not be amended because there was no law regulating full genderreassignment surgery. The Court considered that the State had failed to strike a fair balance between the public interest and the applicant’s rights. Indeed, the legislative gap left the applicant in a situation of distressing uncertainty with regard to his private life and budgetary restraints in the public-health service did not justify a delay of over four years (Ibid., § 59).