Giuseppe Zago, Northumbria University
On 11 October 2018, the European Court of Human Rights issued a new judgment contributing to the recognition and protection of gender identity within the Council of Europe framework. In S.V. v. Italy, the Court followed up on the recent A.P., Garçon and Nicot v France decision to confirm that authorities’ refusal to authorise a transgender person with a female appearance to change her male forename in the midst of the transition process amounts to a violation of the right to respect for private life under Article 8 of the Convention.
The judgment confirms important principles concerning States’ obligations regarding gender identity, though it fails to address adequately the issue of the legal pathologisation of trans people.
Relevant facts
It is useful, firstly, to outline the main law on legal gender recognition in Italy. This is set out in law n˚164 of 1982. Significantly, there is no explicit requirement for sterilisation in the text of the law, but the law has been interpreted for years so as to require medical surgery in practice, including sterilisation as an implied obligation. The law as it was applied at the time the facts of the S.V. v Italy case developed, required an initial judgment from the District Court to obtain the authorisation to undergo gender reassignment surgery, and a second ruling confirming that surgery had been performed before confirming the applicant’s gender identity.
Over the years, this legal framework has gone through important modifications. The law on gender recognition was modified by the legislative decree n˚ 150 of 2011 art. 31, which removed the provision requiring a second ruling to obtain the final recognition of gender reassignment. Furthermore, the Court of Cassation, i.e. the Italian Supreme Court, affirmed with judgment n˚15138 of 20 July 2015 that the law cannot impose surgery causing sterilization as a mandatory condition to obtain the legal recognition of gender identity, while the Constitutional Court stated in the same year that transgender people do not have to undergo surgical treatment to change name marker in official documents. These interpretations were influenced by the judgment issued by the ECtHR in Y.Y. v Turkey, where the Court clarified that denying a person the ability to undergo a gender reassignment operation if the applicant requesting it is not permanently unable to procreate constitutes a violation of Article 8. However, it is important to note that the current procedure in Italy is still based ultimately on judicial assessment.
Mrs S.V. was registered at birth in the Public Registry as male. However, she has always identified her gender identity as female. Indeed, the applicant has conducted her life according to her gender identity, choosing to be identified with the female name S. She used it also after being hired as a public servant in 1999. When she renewed her identity card in 2000, the ID picture showed her appearing as a woman. Since 1999, Mrs S. had already undertaken a hormone cure treatment, while the year after she decided to file a request before Rome District Court to obtain the authorisation to have gender reassignment surgery (paras. 5 – 8).
The Court authorised S. to undergo surgery in 2001. In the same year, she applied for a change of her male forename in official documents to the Prefect, i.e. the authority in charge of assessing decisions concerning individuals’ civil status in Italy. However, S.’ request was rejected, as the public authority concluded that under the legislation in force at the time the person’s name should correspond to their sex, thus she could not change her name until the court confirmed that the surgery had been performed and issued a final ruling on her gender identity, which it only did two and a half years later, in October 2003 (par. 16).
Before the District Court second ruling, S.V. challenged the Prefect’s decision before the Regional Administrative Court as provided by the law of the country. The Court confirmed the Prefect’s assessment. At that point, the applicant decided not to refer the decision to the Court of final instance competent to judge the issue (the Council of State), as she reported that no application on behalf of transgender people concerning the change of name marker had ever been accepted by the Prefect, so the Chamber agreed with S.V. that she could reasonably expect that the Council of State would not have reverted the previous judgment (paras. 43 – 44).
The Strasbourg Court reasoning
As described above, the Court had to decide on facts happened between 2000 and 2003, i.e. before the Italian law on gender identity was amended.
The Chamber first stressed that S.V. can be considered a victim under the Convention, as she had to wait for a long time before obtaining a judicial decision definitively acknowledging her gender identity (par. 32 – 36). This had seriously affected her private life. The Court also held that judicial authorisation could not be considered as an implicit recognition by the State that a violation had occurred, nor had any public authority offered any explicit acknowledgement of human rights violations.
Regarding the merits of the case, the Court highlighted the importance of the application in question within the ECtHR case-law concerning gender identity. The Court has already established that gender identity shall be legally recognised (Christine Goodwin v UK), and that States should introduce laws fully regulating gender – reassignment surgery (L. v Lithuania). The ECtHR also confirmed that transgender people cannot be forcedly sterilised for their gender identity to be legally recognised (Y.Y. v Turkey) and that transgender people cannot be denied the change of gender identity in their documents when they are not willing to undergo gender reassignment surgery (A.P., Garçon and Nicot v France).
Distinctive from these previous cases, S.V. did want to change her primary sex characteristics, but she asked the State to legally recognise her female forename before the end of the transition process, in light of her physical appearance and social status. Thus, contrary to the A.P., Garçon and Nicot case, the judges were called to assess whether the Italian authorities’ strict interpretation of the law available at the time constituted a disproportionate interference with the applicant’s private life (par. 57).
From this perspective, the Chamber reiterated that the right to private life under the Convention not only requires a State party to avoid interfering with individuals’ private lives, but also requires it to ensure the effective recognition and protection of the right to private and family life. This latter obligation implies a balance between an individual and the public’s interests (par. 60).
The judges also reiterated that the right to a gender and sexual identity represents a very intimate aspect of private life, and that States have a narrow margin of appreciation to regulate these matters (par. 62).
Particularly, the Court observed that it is hard to see what public interest needed protection in the case of S.V.: it highlighted that the material situation of the applicant, in terms of physical appearance and social identity, also considering the many years passed since she had started the legal recognition process, should have not been ignored; on the contrary, the public authority based their decision on formal arguments only (paras. 70 – 71).
In a very powerful obiter dictum, the judges underline that “the Convention protects rights that are not theoretical or illusory, but real and effective” (par. 71). Instead, the excessive inflexibility of the judicial procedure provided by the Italian law and its application by public authorities became a source of humiliation, vulnerability and anxiety for the applicant (par. 72). The Court was supported in its conclusions by the fact that the law was amended in 2011 with the repeal of the second judicial decision requirement to have gender reassignment legally recognised, which had represented an unnecessary burden for trans people.
Comments
S.V. v Italy adds to the consolidation of a European human rights framework recognising and protecting gender diversity. The Court continues following an approach based on gradual evolution: it already established that transgender people cannot be forced to undertake gender reassignment surgery and that legal gender identity recognition cannot compromise the physical and psychological integrity of the person; in S.V., the Court specifies that even in cases when a transgender individual has willingly decided to undergo surgery, the State shall guarantee the rapid, transparent and accessible change of gender identity and name marker, as affirmed by Recommendation (2010)5 of the Committee of Ministers of the Council of Europe, cited by the Court. By denouncing the rigidity of the Italian authorities, the Court seemed to refer to the idea that legal principles should be interpreted in light of social context and expectations to promote and not obstacle human rights. Indeed, in the past trans rights cases have allowed the Court to show its most progressive side, since the time when it applied the Convention “as a living instrument” in Goodwin v UK.
The Chamber could reach these conclusions thanks to a trend developing at the UN and at the Council of Europe, as evidenced in soft law instruments cited in the judgment (paras. 26-28). However, the Court overlooked the broader conceptualisation of gender expression based on self-determination as developed in these same international soft law instruments, such as the Yogyakarta Principles +10, which were not mentioned by the Chamber. For instance, Principle 31 on the Right to Legal Recognition calls for States to end registration of the sex and gender of the person in identity documents, and even while sex or gender continues to be registered, to “ensure access to a quick, transparent and accessible mechanism to change names, including to gender-neutral names, based on the self-determination of the person”
Indeed, the Court avoided addressing the issue of legal pathologisation of gender identity and expressions, in the same way as in the A.P., Garçon and Nicot case. The judges expressly opted for avoiding any discussion on the human rights compliance or effectiveness of the national procedures in place to regulate gender identity recognition. The judgement in S.V. relied consistently on the particular situation of the applicant, who had already undertaken a transition process through medical treatments and already manifested her gender identity through her physical appearance.
Therefore, it seems that the Court continues to subscribe to a narrow interpretation of the concept of gender identity linked with the notion of transsexuality via medicalisation. I would also not hold my breath waiting for the Court to analyse any time soon the combination of bureaucratic obstacles and pathologisation of gender identity as a form of inhumane and degrading treatment under Art. 3, at least until a wider consensus on self-determination would consolidate among State parties.
In conclusion, although the Court is building a strong legal framework that contributed significantly to legal recognition of transgender people rights in Europe, the path towards depathologisation of gender identity and self-determination still seems to be in the hands of individual national jurisdictions.
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