EUROPEAN COURT/ ROMANIA: The European Court and gender affirming surgery
X and Y v. Romania: the ‘impossible dilemma’ reasoning applied to gender affirming surgery as a requirement for gender recognition
By Sarah Schoentjes and Dr. Pieter Cannoot
Strasbourg Observer (25.02.2021) – https://bit.ly/3uGK2yr – In the case of X and Y v. Romania, the ECtHR has declared one more abusive requirement for gender recognition to be a violation of article 8 of the Convention. Almost two years after X v. FYROM, in a case with a similar fact pattern, the Court finally declared that requiring trans persons to undergo gender affirming surgery before they could obtain legal gender recognition violates their human rights. Though the judgment is not without flaws – notably, the Court’s now steadfast refusal to examine gender recognition cases under art. 14, – X and Y v. Romania is a momentous development in the Court’s case law, guaranteeing trans people an extra level of much-needed protection, recognition and autonomy.
Summary of the facts
The applicants in X and Y v. Romania are two transgender men, both of whom sought gender recognition in Romania, in the form of amending their legal gender markers, forenames and national identification numbers. Both applicants have identified as men from a young age, and socially presented accordingly in certain areas of their life. Both also obtained a psychiatric diagnosis of ‘gender identity disorder’ and underwent elements of a medical transition, such as a mastectomy and hormone replacement therapy. Both applicants then started procedures before the national courts, the first applicant asking only for gender recognition, the second both for gender recognition and for the permission to undergo gender affirming surgery. The courts denied the first applicant’s request on the basis that ECtHR jurisprudence allowed Member States to require that a person has undergone gender affirming surgery before they apply for legal gender recognition. For the same reason, they granted only the second applicant’s first request: he obtained permission to undergo genital surgery, but would have to go through a second judicial procedure afterwards to obtain legal gender recognition.
The first applicant then left for the UK, where he obtained a Gender Recognition Certificate after a few years of residency. However, this Certificate cannot be used as an identification document, and so there remained an incongruence between his (female) Romanian ID and his (male) administrative identity in the UK. This incongruence exposed him to vulnerability and discrimination, and acted as an obstacle to his professional ambitions as a lawyer[i].
The second applicant realised the experimental nature and financial cost of gender affirming surgery in Romania, as well as the invasiveness of such a procedure. He therefore decided to start a second judicial procedure to request gender recognition without having undergone surgery. This request was denied. After this judgment, the second applicant did eventually undergo genital surgery. Consequently, the national courts acquiesced to his third request for gender recognition.
Summary of the judgment
The Court’s reasoning under art. 8 is twofold. The first part concerns the legal framework for gender recognition in Romania. The second analyses the validity under the Convention of gender affirming surgery as a requirement for legal gender recognition. Despite the applicants’ and third parties’ arguments regarding this case’s importance regarding the State’s negative obligations, the Court decided to examine both of those aspects from the angle of the State’s positive obligations under art. 8.
In its reasoning about the legal framework, the Court starts by noting that Romanian law makes it possible to amend one’s legal gender after a judicial decision granting permission to do so. The Court then goes on to examine twenty national judicial decisions concerning gender recognition. It finds that there seems to be no consistent internal practice regarding the conditions Romanian courts require to be met before they grant a request for gender recognition. The Court does not contradict the legislator’s choice to make gender recognition dependent upon a judicial procedure, but it does cite international recommendations – both from Council of Europe organs and UN organs – insisting upon the need for ‘quick, accessible and transparent’ gender recognition procedures. Considering that the national courts reached such varying conclusions about the conditions and procedure for gender recognition, the Court concludes that the Romanian gender recognition procedure is not sufficiently transparent. Consequently, it finds a violation of art. 8 regarding the lack of clarity of the Romanian legal framework surrounding gender recognition.
Despite the second applicant’s complaint that his physical integrity under art. 3 was violated, the Court limits its analysis of gender affirming surgery as a requirement for gender recognition to the scope of art. 8. The Court starts by insisting on the importance of the accuracy of public civil records, declaring that this importance justifies rigorous procedures surrounding any changes to these records in order to ensure their accuracy. Nevertheless, this public interest still needs to be balanced against the private interests of the applicants.
The Court goes on to compare the present case to its previous case law on gender recognition. It stresses that the applicants are in a fundamentally different position than those in S.V. v. Italy and Y.T. v. Bulgaria, in that they explicitly state that they do not want to undergo gender affirming surgery. In that sense, the Court considers that their situation is more similar to that of the applicants in A.P., Garçon and Nicot v. France, in which the applicants refused to undergo mandatory sterilisation to obtain gender recognition. However, the Court notes that the present case is also significantly different from A.P., Garçon and Nicot, since the present applicants do not insist specifically on the sterilisation that can be a consequence of gender affirming surgery, but on the invasiveness of the medical procedure in itself, regardless of its impact on fertility. The Court recognises that requirements for gender recognition are problematic whenever they have an impact on a person’s physical integrity.
The Court points out that the State did not offer any specific reasons of public interest that could justify such an impact on the applicants’ physical integrity. In the absence of such a justification, the applicants were faced with an unreasonably long period of ‘vulnerability, humiliation and anxiety’. Furthermore, the Court expands the parallel with A.P., Garçon and Nicot by building upon its ‘impossible dilemma’ reasoning: by requiring the applicants to undergo gender affirming surgery before they could obtain gender recognition, the State forced them to choose between their right to physical integrity under art. 8 (and, as the Court mentions but does not expand upon, art. 3) and their right to the recognition of their gender identity, also under art. 8. In forcing the applicants to make this impossible choice, the State failed to adequately balance public interests against the applicants’ private interests.
The Court supports this reasoning with one last argument: the continuously decreasing number of States requiring mandatory gender affirming surgery. Indeed, the Court seems to consider that the fact that twenty-six CoE Member States no longer impose such a requirement limits the State’s margin of appreciation in such matters. Consequently, the Court finds that mandatory gender affirming surgery as a requirement for legal gender recognition violates art. 8 of the Convention. Having found this violation, the Court considers it unnecessary to examine the case separately under any of the other articles raised by the applicants, notably art. 14.
Commentary of the judgment
- No more mandatory gender affirming surgery: an unquestionably positive evolution for trans rights
X and Y v. Romania marks an extremely positive development in the ECtHR’s case law on trans rights. By condemning one more medical abusive requirement for gender recognition, it obviously increases protection for trans persons’ physical integrity. The positive consequences of this judgment go further than just this one aspect, though. Indeed, this decision makes gender recognition available to more persons: trans persons who are unwilling or unable to undergo genital surgery are now included in the right to gender recognition under art. 8. The Court explicitly legitimises the unwillingness to undergo gender affirming surgery through the ‘impossible dilemma’ argument, and touches on financial costs and shortcomings of medical interventions as valid reasons why a trans person might not be able to (safely) undergo such a procedure. One could, however, also imagine other reasons why someone may be unable to undergo this surgery, such as health concerns, for example, or religious and familial restrictions. Furthermore, the Court’s judgment leads to a significant shortening of gender recognition procedures. Gender affirming surgery is often the last step in a long medical transition that generally takes several years and in which each step is subject to a (potentially very long) waiting list. The possibility of requesting gender recognition without having undergone gender affirming surgery therefore considerably shortens the period of ‘vulnerability, humiliation and anxiety’ that trans persons are subjected to when their identity documents do not match their gender presentation.
In X v. FYROM, two years ago, the Court stopped at the conclusion that the national legal framework surrounding gender recognition was lacking, refusing to separately examine mandatory gender affirming surgery as a requirement for gender recognition. The majority found that there was no legal framework for gender recognition procedures, because they were not provided for in national legislation. This was a sufficient reason to find a violation of art. 8, and there was therefore no reason to separately examine the validity of the requirements imposed on the applicant. The dissenting judges instead argued that consistent judicial decisions constitute a sufficiently predictable legal framework, even in the absence of a legislative framework. In that context, the dissenting judges were of the opinion that mandatory gender affirming surgery as a requirement for gender recognition fell within the State’s margin of appreciation. The fact that the Court chose not to rule on the validity of this requirement suggests far-reaching internal disagreement among the judges regarding this particular topic.
In the present case, there was a national legislative framework. However, judicial interpretations of said framework were fragmented and inconsistent, which could be interpreted as an unclear legal framework. Once it found that the Romanian legal framework was lacking, the fourth section of the Court could have followed the same reasoning as the first section did in X v. FYROM and stopped there. Instead, it took things a step further by specifying an extra condition that the new, clear legal framework must respect: it must abolish mandatory gender affirming surgery as a requirement for gender recognition. Notably, in contrast to the divided judgment in X v. FYROM, the present judgment is unanimous.
The Court explicitly grounds this evolution in its case law in the evolution of soft law, civil society and national legislation. It cites recommendations and reports by several organs from the UN, CoE and EU and takes into account third party interventions by the UNHCHR as well as by LGBTQ+ organisations Transgender Europe, ILGA-Europe and Accept. It also, as mentioned above, points to the fact that twenty-six European countries abolished surgical requirements for gender recognition. Ever since the case of Christine Goodwin v. UK, the Court has attached great importance to international ‘trends’ in legal and social acceptance of trans persons. This judgment is one further expression of how the interaction and mutual reinforcement of several fields of society and law drive an evolution towards increased protection and autonomy for trans persons.
- Things are not all rosy yet: several important questions remain
X and Y v. Romania is not all positive, though. First and foremost, we are still far removed from actual self-determination for trans persons in the context of legal gender recognition. Gender affirming surgery was an important abusive requirement to eliminate for gender recognition, but there are many other abusive requirements, on which this judgment sheds little light. The insistence on the ‘impossible dilemma’ argument does open the door to abolishing other medical requirements for gender recognition that affect a person’s physical integrity. If the Court sticks to this line of judicial reasoning, it may also end up condemning mandatory hormone replacement therapies. Moreover, it would be particularly interesting to see the physical integrity aspect of this ‘impossible dilemma’ argument developed under art. 3 in a future case.
Other medical requirements, though, remain unaffected – or maybe even bolstered – by this judgment. Indeed, the Court insists heavily on the fact that both applicants were diagnosed with ‘gender identity disorder’ by a psychiatrist, and that they lived ‘as men’ for several years before they requested legal gender recognition. In the Court’s reasoning, these factors seem to mean the applicants are ‘really trans’, and this seems to be implicitly used as a justification for why gender affirming surgery is no longer necessary in their cases. The Court thus grants significant legitimacy to psychiatric diagnosis and ‘lived experience’ as (medical) requirements for gender recognition.
Furthermore, medical conditions are not the only abusive requirements for gender recognition. In Hämäläinen v. Finland, for example, the conditions at stake were mandatory divorce as a requirement for gender recognition as well as the impossibility for the applicant to be legally recognised as her child’s mother rather than as his father. The Court upheld these requirements, and has yet to come back on that ruling. Abusive requirements that affect other aspects of a trans person’s private life – marriage and parental rights, notably – consequently still hold strong. Moreover, in the present judgment, the Court once again stressed the importance of the integrity, coherence and inalienability of the civil status, which – according to the Court – allows for ‘rigorous’ assessments of applications of legal gender recognition. In other words, the ECtHR still has a long way to go before it recognises gender self-determination as the only possible ground for gender recognition, a position that the Inter-American Court of Human Rights already took in 2017.
On a related note, the scope of this judgment could also be seen as unfortunately limited concerning the categories of trans persons it is arguably applicable to. In its presentation of the case’s circumstances, the Court insists on the applicants’ rather ‘classical’ trans experience, stressing that they both realized they were trans at a young age as well as their extensive medical and social transition, and granting no consideration to the possibility of trans experiences outside a binary view of gender[ii]. This raises questions about the Court’s attitude towards a hypothetical future applicant whose experience of being trans diverged from this narrative.
This reluctance to truly examining the diversity of trans experiences in a structurally cisnormative society shines through in one last way: the Court once more refuses to examine this case under art. 14 of the Convention. This sidestepping of the discrimination issue is, by now, expected in cases on gender recognition, but never becomes any less disappointing. It may in fact be particularly disappointing in this case, considering that both the first applicant and the intervening third parties handed them the relevant reasoning on a silver platter. Cisgender persons do not have to subject themselves to a plethora of conditions in order to have their gender identity recognised. Trans persons do, even though their gender is just as integral to their personal identity as it is for cisgender people. The Inter-American Court used this exact reasoning to condemn abusive requirements for gender recognition as discriminatory back in 2017. Its European counterpart, however, steadfastly refuses to even consider the question.
The Court’s repeated unwillingness to address the ways systemic and structural discrimination of trans persons is embedded in our cisnormative legal frameworks certainly is a disappointment. So is the fact that it upholds resolutely binary and essentialist trans narratives in this judgment. Nevertheless, X and Y v. Romania is an extremely important and hugely positive step forward for trans rights in Europe. By unanimously declaring that mandatory gender affirming surgery as a requirement for legal gender recognition violates art. 8 of the Convention, the Court significantly increases the protection and autonomy of trans persons in the CoE. It frees trans persons who do not want to undergo gender affirming surgery from the impossible choice between their physical integrity on the one hand, and the legal recognition of their gender identity (and the protection from everyday discrimination it entails) on the other hand. It also makes legal gender recognition available for trans persons who find themselves unable to undergo gender affirming surgery. Furthermore, it leads to increased protection for trans persons who do want to undergo gender affirming surgery, since it allows them to obtain legal gender recognition before they do so and consequently shortens the period in which an incongruence between their ID and their appearance potentially exposes them to discrimination and harassment. Last but not least, looking to the future, the Court’s use of the ‘impossible dilemma’ argument in this case opens up a promising line of legal reasoning that could be the key to the abolition of most, if not all, abusive requirements for gender recognition.
[i] In a clear example of the importance of legal gender recognition, the first applicant’s lack of access to ID papers reflecting his gender identity rendered him unable to become a lawyer in the UK. Indeed, he had registered for the first series of exams to become a lawyer using his (British) masculine name. However, he was then asked to prove his identity to enroll for the final exam. Since his official (Romanian) ID papers still had his female name, he was unable to do so. Consequently, he was not allowed to take the exam, which make it impossible for him to become a lawyer.
[ii] It must be remarked that the second applicant has Turner syndrome, and can consequently be considered to be intersex. The Court did not expand upon this fact, but this goes to show how intertwined trans and intersex rights are, especially with respect to protection from non-consensual medical procedures.
Photo credits : Imago