Region: Europe
Year: 1992
Court: The European Court of Human Rights
Health Topics: Health care and health services, Hospitals, Mental health, Sexual and reproductive health
Human Rights: Right to family life
Tags: Clinics, Depression, Health facilities, Hormone therapy, Primary care, Private hospitals, Sex reassignment, Transgender, Transsexual
The applicant’s (B) gender was registered with the civil status registrar as male. Right from an early age, the applicant adopted female behavior and was considered a girl by her siblings. She completed her military service in Algeria and moved to Paris, working in a cabaret. She was treated in a hospital for a month as she suffered from nervous depression. The doctor prescribed her female hormones. The applicant further underwent surgery for removal of external genital organs and creation of a vaginal cavity.
The applicant was living with a man whom she sought to marry. She brought proceedings for her gender assigned at birth to be changed to female and her birth certificate to be corrected. Further she asked for a name change to be recorded. The tribunal dismissed her action due to the fact that the change of sex was intentionally brought by artificial processes. The applicant appealed to the Bordeaux Court of Appeal but it upheld the decision of the lower court. She further appeal to the Court of Cassation, which dismissed her appeal.
The majority held that there had been a violation of Article 8 of the Convention (right to private and family life). The Court stated that the applicant encountered significant problems in everyday life because of the refusal of the lower courts to effect a change in the official records.
The dissenting opinions expressed concern that it was not clear on what basis the majority was holding a violation of Article 8.
“The Court thus reaches the conclusion, on the basis of the above-mentioned factors which distinguish the present case from the Rees and Cossey cases and without it being necessary to consider the applicant’s other arguments, that she finds herself daily in a situation which, taken as a whole, is not compatible with the respect due to her private life. Consequently, even having regard to the State’s margin of appreciation, the fair balance which has to be struck between the general interest and the interests of the individual (see paragraph 44 above) has not been attained, and there has thus been a violation of Article 8 (art. 8). (Para 63)