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Gender Reassignment and Sterilization in the Light of
the Case of A.P., Garçon and Nicot v. France

A.P., Garçon ve Nicot / Fransa Kararı Işığında Cinsiyet Değiştirme ve Kısırlaştırma

Ali ERDOĞAN

The judgment in A.P., Garçon and Nicot v. France, delivered by the European Court of Human Rights on 6 April 2017, confirms a solution already subtly announced in Y.Y. v. Turkey Convention of 10 March 2015, namely that the change in the mention of sex in civil status can not be made sunject to prior sterilization, but that it is, on the other hand, open to States to retain a medical sex change procedure. While the judgment of 6 April 2017 may at first sight appear to be a victory for human rights defenders of transsexual persons, its analysis calls for a much more nuanced assessment. Indeed, contrary to the path recently taken by France, the Court validates the medicalization of procedures for sex reassignment, considering in particular that it is not an attack on the privacy of transsexual persons to consider them as sick by requiring them to report evidence of a “transsexual syndrome”. This validation of medical procedures by the Court is open to criticism on two counts. On the one hand serious doubts are raised as to the appropriateness of the pathology of persons wishing to resort to this procedure. That validation is also open to criticism inasmuch as it is decided on the basis of a reasoning in which the Court, distorting Article 8 of the Convention, has carried out a minimum examination of the applicants’ complaints.

Gender reassignment, ECHR Art.8, Transsexual, Sterilization, Civil Status.

Avrupa İnsan Hakları Mahkemesi’nin 6 Nisan 2017’de teslim ettiği A.P., Garçon ve Nicot / Fransa’daki karar, 10 Mart 2015 tarihli Y.Y. / Türkiye Konvansiyonu’nda açık bir şekilde açıklanan bir çözümü teyit etmektedir; yani, medeni durumdaki cinsiyet hanesi değişikliğinden önce sterilizasyona maruz bırakılamaz, ancak öte yandan Devletlere tıbbi bir cinsel değişim sürecini devam ettirmek açıktır. 6 Nisan 2017 tarihli karar ilk bakışta transseksüel insan hakları savunucuları için bir zafer gibi görünse de, analizi çok daha nazik bir değerlendirme gerektiriyor. Nitekim, Fransa tarafından yakın tarihte alınan yolun aksine, mahkeme cinsiyet değiştirme için transseksüel sendromuna kanıt istenmesinin, onları hasta gibi tanımlayarak, transseksüel kişilerin özel hayatlarına saldırı olmadığını düşündüğü medikal prosedürü doğrulamaktadır. Tıbbi prosedürlerin mahkeme tarafından onaylanması, iki konuda yapılan eleştirilere açıktır. Bir yanda bu prosedüre başvurmak isteyen kişilerin patolojilerinin uygunluğuna ilişkin ciddi şüpheler doğar. Öte yandan söz konusu doğrulama, mahkemenin 8. maddeyi bozarak, başvuranların şikayetlerini asgari olarak incelenmesini sağlayan bir mantık temelinde karar verildiği için eleştirilere açıktır.

Cinsiyet Değiştirme, AİHS m.8, Transseksüel, Kısırlaştırma, Medeni Durum.

Introduction

Gender, as a legal category enabling the distribution of individuals into distinct identity groups, has in recent years undergone significant changes in its definition. Originally perceived as a purely biological from the middle of the twentieth century onwards, and scientific progress in both “hard” and “social” sciences to integrate psychological and social data within it. Thus a second definition of sex, xombining biological and psychosocial data, has emerged. This partial denaturalization was enshrined in 1992 by European Court of Human Rights in B. v. France. Indeed, in that case, a person was allowed to obtain a change in the mention of his or her sex in the civil register by relying both on psychosocial data (the conviction of belonging to the opposite sex), than biological (the modification of his body). In recent years, this movement of denaturalization has continued and a third definition of sex is defined, which is only psychosocial, in which the word sex becomes synonymous with sexual identity.

Some countries in Europe have already adopted this third definition. This is the case in France, which very recently adopted a sex change procedure based solely on psychosocial data. Indeed, the law of modernization of justice of the XXI century introduced in the civil code two articles 61-5 and 61-6, from which it is deduced that the judge can no longer take into account the biology of an individual to refuse his change of sex. Although Frence is not the only member of Council of Europe to have taken this direction, it is nonetheless a minority in the member states of the Council of Europe. This explains in part why the European court of Human Rights, in A.P., Garçon and Nicot v. France on April 6, refused to adopt this third definition of sex.

Principal Facts

The three applicants are French nationals. The first applicant, A.P., was born in 1983 and lives in Paris (France). The second applicant, E.Garçon, was born in 1958 and lives in Perreux-sur-Marne (France). The third applicant, S.Nicot, was born in 1952 and lives in Essey-les-Nancy (France). In view of the similarity between the applications, the Court considered it appropriate to join them, in application of Rule 42 § 1 of the Rules of Court.

On 11 September 2008 A.P. brought proceedings against the public prosecutor at the Paris tribunal de grande instance (TGI) to have it established that he was now a female and that his first name was A. (a female forename). He submitted four medical certificates in support of his request, one of which certified gender reassignment surgery undergone in Thailand on 3 July 2008. In an interlocutory judgment of 17 February 2009, the TGI ordered a report covering the physiological, biological and psychological aspects of his situation. A.P. refused to submit to this examination, on account of its cost and the infringement of his physical and moral integrity. By a judgement of 10 November 2009, the TGI dismissed A.P.’s action. The Paris Court of Appeal confirmed the TGI’s judgment so far as it dismissed the request to change the entry on his sex, but ordered that the forenames be changed. On 7 June 2012 the Court of Cassation dismissed an appeal on points of law.

On 17 March 2009 E.Garçon brought proceedings against the public prosecutor at the Creteil tribunal de grande instance (TGI) to have it established that he was now a female and that his first name was Emilie. He referred to a certificate drawn up by a psychiatrist in 2004; this certificate indicated that he was transgender, but it was not added to the case file. On 9 February 2010 the TGI held that, since he had failed to demonstrate that he actually suffered from the alleged gender identity disorder, E.Garçon’s action ought to be dismissed. The Paris Court of Appeal upheld the judgment. On 13 February 2013 the Court of Cassation dismissed an appeal on points of law.

On 13 June 2007 S.Nicot brought proceedings against the public prosecutor at the Nancy TGI to have it established that he was now a female and his first name was Stephanie. On 7 November 2008 the TGI adjourned the proceedings and ordered the medical documents on the applicant’s medical and surgical treatment, proving the effectiveness of his sex change, be submitted to the case file. S.Nicot refused to submit these documents. In consequence, by a judgment delivered on 13 March 2009, the TGI dismissed his action. The Nancy Court of Appeal upheld the judgment. On 13 February 2013 the Court of Cassation dismissed an appeal on points of law.

Statement of the reasoning of the Court

In order to reach the conclusion that the French State infringed the applicants’ right to respect for private life, the Court began by verifying the applicability of Article 8 of the Convention. In his view, the applicants’ situation is found in three respects in that article. First, because it is classically referred to as “sexual identity”, which falls within the “personal sphere protected by Article 8” (§92). Secondly, because this case involves the notion of personal autonomy which, in the context of “transsexual persons”, includes a right to “self-determination, the freedom to define one’s sexual belongings is one of the most essential elements (§93). Lastly, the right to personal development and the physical and moral integrity of “transsexual persons” is also at issue here, a right also found by the Court under Article 8 of the Convention (§93). Indeed, for the Court, Article 8 “applies to all individuals” (§95).

92. The Court has emphasized on numerous occasions that the concept of “private life” is a broad concept, not capable of being defined in its entirety, which covers not only the physical and moral integrity of the individual but also sometimes aspects of the physical and social identity of the latter. Elements such as, for example, sexual identity or identification, name, sexual orientation and sexual life fall within the personal sphere protected by Article 8 of the Convention.

93. The Court has also emphasized that the notion of personal autonomy reflects an important principle underlying the interpretation of the guarantees of Article 8 of the Convention, which led it to recognize, in the context of the application of that provision to the situation of transsexual persons, that it includes a right to self-determination, whose freedom to define one’s sexual belonging is one of the most essential elements. It further stated that the right to personal fulfillment and to the physical and moral integrity of transsexual persons is guaranteed by Article 8.

95. As a component of personal identity, sexual identity is fully part of the right to respect for private life enshrined in Article 8 of the Convention. This applies to all individuals.


The Court then turns to the question of which prism to examine the infringement of their right to respect for private life complained of by the applicants: that of the positive obligation or that of the negative obligation. Let us recall that the Court refers to a negative obligation to designate cases in which the State has obligation to interfere with the rights of individuals and that, on the conrary, a positive obligation exists where the State has obligation to act so that the rights of individuals are respected. The difference between these two approaches is important. Approaching a case through positive obligations rather than negative obligations significantly reduces the Court’s control over the obligations of States. In the presence of a positive obligation, the Court no longer verifies the quality of the standard on the basis of which the infringement of the applicant’s fundamental right takes place, nor does it verify the aim pursued by the State to infringe to the fundamental right of the applicant.

In the present case, the Court considers that this case raises the question whether France has properly complied with its positive obligation to guarantee the applicants’ respect for their private life by offering them a procedure for the change of sex, balance between the general interest and their particular interest. The Court thus concurs with the government’s analysis and dismiss the analysis of the first applicant. In one of his complaints, the applicant considered that the case should be considered in the negative prism of the State, since in his view the question arose whether the State had complied with its obligation not to interfering with one’s right to privacy is determinative of the rest of the reasoning.

100. The Court finds that France responds at first sight to this positive obligation since French law allows transsexual persons to obtain legal recognition of their identity through the rectification of their civil status. However, at the time of the facts of the applicants’ case, French law subordinated this legal recognition to the establishment of the reality of the transsexual syndrome and the irreversibility of the transformation of appearance; the requests made by the second and thir applicants for this purpose were therefore rejected on the ground that condition had not been fulfilled. The question which arises in the case of the second and third applicants is therefore whether, in imposing such a condition on them, France has failed to fulfill its positive obligation to guarantee the right of the latter to respect for their private life. In the case of first applicant, the question arises whether France was held responsible for such a failure by making the legal recognition of its identity conditional upon its submission to a medical opinion.