Two trans men working for the government in Bahrain have been given initial approval for sex reassignment. Fawzia Janahi, the lawyer acting on behalf of the two, said the High Administrative Court had referred them to a medical examiner. This is expected to lead to them being allowed to undergo sex reassignment surgery abroad, and to be legally recognised as male.
Linda Grant, a 68-year-old post-operative male-to-female transsexual, complained about the lack of legal recognition of her change of sex and the refusal to pay her a retirement pension at the age applicable to other women (60). The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It observed that the applicant had been in a situation identical to that of Christine Goodwin. While it was true that the Government had had to take steps to comply with the Christine Goodwin judgment, which had involved passing new legislation, it was not the case that that process could be regarded as in any way suspending the applicant’s victim status. Following the Christine Goodwin judgment there was no longer any justification for failing to recognise the change of gender of post-operative transsexuals. The applicant did not have at that time any possibility of obtaining such recognition and could claim to be prejudiced from that moment. The applicant’s victim status had ceased when the Gender Recognition Act of 2004 had entered into force, thereby providing her with the means on a domestic level to obtain legal recognition. Consequently, she could claim to be a victim of the lack of legal recognition from the moment, after the Christine Goodwin judgment, when the authorities had refused to give effect to her claim, namely from 5 September 2002. This lack of recognition had breached her right to respect for her private life.
The applicant complained of the lack of legal recognition of her changed sex and in particular of her treatment in terms of employment and her social security and pension rights and of her inability to marry.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, owing to a clear and continuing international trend towards increased social acceptance of transsexuals and towards legal recognition of the new sexual identity of post-operative transsexuals. “Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, the Court reaches the conclusion that the notion of fair balance inherent in the Convention now tilts decisively in favour of the applicant” (§ 93 of the judgment).
The Court also held that there had been a violation of Article 12 (right to marry and found a family) of the Convention. It was “not persuaded that it [could] still be assumed that [the terms of Article 12] must refer to a determination of gender by purely biological criteria” (§ 100). The Court held that it was for the State to determine the conditions and formalities of transsexual marriages but that it “finds no justification for barring the transsexual from enjoying the right to marry under any circumstances” (§ 103).
The case concerned the failure to introduce implementing legislation to enable a female to undergo sex reassignment surgery and change her sex identification in official documents.
The Court held that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention. While the applicant had suffered understandable distress and frustration the circumstances were not of such an intense degree, involving exceptional, life-threatening conditions, as to fall within the scope of this provision.
The Court further held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. Lithuanian law recognised transsexuals’ right to change not only their sex but also their civil status. However, there was a gap in
the legislation in that there was no law regulating full sex reassignment surgery. This legislative gap had left the applicant in a situation of distressing uncertainty with regard to her private life and the recognition of her “true identity.” Budgetary restraints in the public health service might have justified some initial delays in implementing the rights of transsexuals under the Civil Code but not a delay of over four years. Given the limited number of people involved, the budgetary burden would not have been unduly heavy.
The applicant complained about the alleged unfairness of German court proceedings concerning his claims for reimbursement of sex reassignment measures against a private health insurance company. He further considered that the impugned court
decisions had infringed his right to respect for his private life.
The Court held that there had been a violation of Article 6 § 1 (right to a fair hearing) of the Convention. The German courts should have requested further clarification from a medical expert. With regard to the Court of Appeal’s reference to the causes of the
applicant’s condition, it could not be said that there was anything arbitrary or capricious in a decision to undergo sex reassignment surgery and the applicant had in fact already undergone such surgery by the time the Court of Appeal gave its judgment.
The proceedings, taken as a whole, had not satisfied the requirements of a fair hearing. The Court also held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. Since gender identity was one of the most intimate aspects of a person’s private life, it appeared disproportionate to require the applicant to prove the medical necessity of the treatment. No fair balance had been struck between the interests of the insurance company on the one hand and the interests of the individual on the other.
The case concerned the refusal by Max Schlumpf’s health insurers to pay the costs of his sex-change operation on the ground that he had not complied with a two-year period before gender reassignment surgery, as required by the case-law as a condition for payment of the costs of such operations.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. The waiting period had been applied mechanically without having regard to the age (67) of the applicant, whose decision to undergo an
operation was likely to be affected by that delay, thus impairing his “freedom to determine his gender identity.”
The case concerned a male-to-female transsexual who, prior to his sex reassignment, had had a son with his wife in 1998. They separated in 2002 and the applicant complained of the restrictions that had been imposed by the court on the contact arrangements with his son on the ground that his emotional instability after his change of sex entailed a risk of disturbing the child, then aged six.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention in conjunction with Article 14 (prohibition of discrimination) to the Convention. It found that the restriction on contact had not
resulted from discrimination on the ground of the applicant’s transsexualism. The decisive ground for the restriction imposed by the Spanish courts, having regard to the applicant’s temporary emotional instability, had been the child’s well-being. They had
therefore made a gradual arrangement that would allow the child to become progressively accustomed to his father’s sex reassignment.