Case of Van Kuck v. Germany

Applications no. 35968/97
Download Judgment: English

The applicant instituted proceedings before the District Court to change her forename to Carola Brenda. The District Court held that the conditions under the Transsexuals Act were met and granted the request in 1991. In 1992, the applicant brought an action against a German health insurance company. She claimed reimbursement for hormone therapy and sex-reassignment surgery to the extent of 50%. Further she claimed reimbursement for the pharmaceutical expenses. She stated that her employee company was supposed to cover the rest of the expenses.

The Regional Court sought for expert opinion on whether the applicant was male-to-female transsexual, whether her kind of trans-sexuality should be considered a disease and whether sex reassignment surgery was the necessary medical treatment. The Regional Court dismissed the claims of the applicant although the expert opinion had unequivocally supported the necessity of gender reassignment surgery. It stated that there was no medical necessity for such treatment. The Court of Appeal dismissed the appeal stating that the applicant had deliberately caused her trans-sexuality and the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.

 

The Court held that there has been a violation of Article 6 (fair hearing) and Article 8 (right to private and family life) of the Convention. The Court states that the Regional Court’s interpretation of the term medical necessity was not reasonable and they failed to take into full consideration the expert opinion. Further, the Court reiterating its stand in the case of I v. United Kingdom and Christine Goodwin stated that to change a gender role, it requires a lot of conviction and commitment and it is a painful procedure. These decisions cannot be said to be arbitrary.

The Court also held that the courts below failed to give appropriate consideration to her trans-sexuality in determination of the liability of the insurance company. The Court noted the approach of the Court of Appeal reproaching the applicant for deliberately causing her trans-sexuality and affected her private life and the right to sexual self-determination.

 

In the present case, the German courts’ evaluation of the expert opinion and their assessment that improving the applicant’s social situation as part of psychological treatment did not meet the requisite condition of medical necessity does not seem to coincide with the above findings of the Court (see Christine Goodwin, cited above). In any case, it would have required special medical knowledge and expertise in the field of transsexualism. In this situation, the German courts should have sought further, written or oral, clarification from the expert Dr H. or from any other medical specialist..” (Para 55)

The Court of Appeal also reproached the applicant with having deliberately caused her transsexuality. In evaluating her sexual identity and development, the Court of Appeal analysed her past prior to the taking of female hormones and found that she had only shown male behaviour and was thus genuinely male orientated. In doing so, the Court of Appeal, on the basis of general assumptions as to male and female behaviour, substituted its views on the most intimate feelings and experiences for those of the applicant, and this without any medical competence. It thereby required the applicant not only to prove that this orientation existed and amounted to a disease necessitating hormone treatment and gender reassignment surgery, but also to show the ‘genuine nature’ of her transsexuality although, as stated above (see paragraph 75 above), the essential nature and cause of transsexualism are uncertain..” (Para 81)

In the light of these various factors, the Court reaches the conclusion that no fair balance was struck between the interests of the private health insurance company on the one side and the interests of the individual on the other. (Para 84)

 

 

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