CEDH · CASELAW;CLIN;ENG — 11 octobre 2018

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Italy - 55216/08 Judgment 11.10.2018 [Section I] Article 8 Positive obligations Article 8-1 Respect for private life Refusal by the authorities to authorise a change of forename prior to the completion of gender reassignment surgery: violation Facts – Following a District Court judgment of May 2001 authorising her gender reassignment surgery, the applicant’s request to have her forename changed was refused by a prefect’s decision in July 2001, on the grounds that an individual’s forename had to correspond to his or her gender and that any change to the civil-status records of transgender persons had to be ordered by a judge in the context of the proceedings confirming the gender reassignment. In 2002 the Regional Administrative Court rejected an application to order an interim stay of execution of the prefect’s decision. In 2008 it dismissed an appeal lodged by the applicant against that decision. As a result, in accordance with the law in force at the relevant time, the applicant had to wait for the District Court to confirm that the surgery had been performed and to give a final ruling on her gender identity, which it did only in October 2003. Law – Article 8 (a)     Applicability – The present case concerned the inability of a transgender person to obtain a change of forename before completing the gender transition process by means of gender reassignment surgery. This issue, which transgender persons were liable to face, differed from the issues hitherto examined by the Court. It came wholly within the scope of the right to respect for private life, and Article   8 was thus undoubtedly applicable. Conclusion : Article 8 applicable. (b)     Compliance with Article 8 – Under Italian law, transgender persons could have their gender identity legally recognised by means of a change of civil status. The applicant had not been required to undergo surgery against her will and solely in order to obtain legal recognition of her gender identity. On the contrary, she had decided to undergo surgery in order to bring her physical appearance into line with her gender identity, and had been authorised to do so by the court. Accordingly, in contrast to the case of A.P., Garçon et Nicot v.   France (79885/12 et al., 6   April 2017, Information Note 206 ), the present case did not concern interference with the applicant’s right to respect for her physical integrity in breach of Article   8. The Court’s task was therefore to determine whether the authorities’ refusal to allow the applicant to change her forename during the gender transition process and before completion of the gender reassignment surgery amounted to disproportionate interference with her right to respect for her private life. The Court did not call into question the choice made by the Italian legislature to entrust decisions on changes to the civil-status register concerning transgender persons to the judicial rather than the administrative authority. Moreover, it fully accepted that the principle of the inalienability of civil status, the consistency and reliability of civil-status records and, more broadly, the need for legal certainty, were in the public interest and justified putting in place stringent procedures aimed, in particular, at verifying the underlying motivation for requests to change legal identity. However, the Court noted that the refusal of the applicant’s request had been based on purely formal arguments that took no account of her specific situation. Hence, the authorities had not taken into consideration the fact that she had been undergoing a gender transition process for a number of years and that her physical appearance and social identity had long been female. In the circumstances of the present case, the Court failed to see what reasons in the public interest could have justified a delay of over two and a half years in bringing the forename on the applicant’s official documents into line with the reality of her social situation, which had been acknowledged by the District Court in its judgment of May 2001. The Convention was intended to guarantee not rights that were theoretical or illusory but rights that were practical and effective. The Court observed the rigid nature of the judicial procedure for recognising the gender identity of transgender persons, as in force at the relevant time, which had placed the applicant for an unreasonable period of time in an anomalous position apt to engender feelings of vulnerability, humiliation and anxiety. In Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, the Committee of Ministers of the Council of Europe had urged States to make possible the change of name and gender in official documents in a quick, transparent and accessible way*. Accordingly, the applicant’s inability to obtain a change of forename over a period of two and a half years, on the grounds that the gender transition process had not been completed by means of gender reassignment surgery, amounted in the circumstances of the case to a failure on the part of the respondent State to comply with its positive obligation to secure the applicant’s right to respect for her private life. Conclusion : violation (unanimously). Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage. (See also Christine   Goodwin v. the United Kingdom [GC], 28957/95, 11   July 2002, Information Note   44 ; Golemanova v.   Bulgaria , 11369/04 , 17   February 2011; Henry Kismoun v.   France , 32265/10, 5   December 2013, Information Note 169 ; Y.Y. v.   Turkey , 14793/08, 10   March 2015, Information Note 183 ; and the Factsheet on Gender identity issues ) * The Court noted with interest that, following a change to the legislation in 2011, a second court ruling was no longer required in proceedings to confirm the gender reassignment of persons who had undergone surgery, as the amendment of the civil-status records could now be ordered by the judge in the decision authorising the surgery.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes