1 Introduction

The COVID-19 pandemic has significantly heightened the number of times that people must show their identity papers in Europe. The requirement to provide identity papers alongside COVID Certificates for accessing public and private spaces in many European states has reinforced the role of identity papers as an entrance ticket for participation in society. This has had negative implications especially for people without any valid identity paper, such as undocumented migrants, and those with “incorrect” identity papers.Footnote 1 The latter group includes certain trans and intersex persons, notably those who have a gender marker and/or a name on their identity documents that do not reflect their gender identity, gender expression and/or physical characteristics in a normative manner. Given the current context in which the role of identity papers for the enjoyment of certain human rights is once again becoming evident, this article analyses the right to change the gender marker and name on identity documents in Europe.

Whilst the effects of the pandemic’s containment measures provide an impetus to investigate states’ identity management more generally, my focus in this article lies on examining the right to change the legal gender as guaranteed by the European Court of Human Rights (ECtHR). The relevant case law on the “right to gender recognition” at the European Court of Human Rights so far concerns only the right of trans persons to change their legal gender from female to male or vice versa. This is also why I will focus almost exclusively on the relevance of legal gender recognition for trans persons who want to be legally recognised as a man or a woman. However, in considering the future of legal genders at the European Court of Human Rights, I will briefly discuss the right to gender recognition of intersex persons and persons who want to be legally registered with a gender other than female (F) or male (M).

The approach taken in this article is, on the one hand, a descriptive one, which exposes the legal arguments and social rationales shaping the discussion on the right to gender recognition at the European Court of Human Rights. On the other hand, I also conduct a normative analysis, proposing ways in which the right to gender recognition should develop so as to guarantee the widest possible human rights protection in the future.

The article continues with a discussion on the legal and social relevance of the right to gender recognition. I then provide an overview of current state practice in relation to gender recognition in Europe, which is followed by an analysis of the relevant European Court of Human Rights case law. In my discussion on the jurisprudence of the European Court of Human Rights, I examine how the Court initially constructed legal gender assignment as immutable and as being determined by “genitocentrism”. Subsequently, I analyse the connection between legal gender and heteronormativity in the law, as reflected in the Court’s jurisprudence. This is followed by a discussion on recent gender recognition cases which outlawed the previously supported genitocentrism and specifically concerned trans persons’ right to change their name. Lastly, I reflect on the future of legal genders at the European Court of Human Rights.

2 Legal and social relevance of the right to legal gender recognition

The COVID-19 pandemic has once again made the relevance of state registration and identity documents for the enjoyment of many human rights obvious. Legal identification instruments are part of what Arendt calls “the right to have rights”, as they incorporate an individual into a community. On the basis of this, they can enjoy certain rights and entitlements.Footnote 2 The information registered on identity papers and in state registries – such as data on a person’s nationality, age and legal gender – provides the public with an indication on the individuals’ legal status in a given community.

Recording gender in state registries and on identity papers has up to now been relevant for the functioning of legal systems, since arguably all Council of Europe states continue to have some laws that distinguish between individuals based on their legal gender.Footnote 3 This is the case despite the fact that most states are working towards reaching formal gender equality in the law. Laws that often remain highly gendered include laws on marriage and legal partnerships, laws on military conscriptionFootnote 4 or laws on social security, such as those concerning retirement ages.Footnote 5 Sometimes it is specifically laws with the purpose of achieving substantive gender equality that rely on a distinction between individuals based on their gender. These can be laws on quotas for women in public and private leadership positions or can be equal-pay legislation.Footnote 6 In general, the higher the number of laws making a difference between individuals based on their (legal) gender, the more relevant it is for trans persons to be able to access gender recognition in order to live their life in accordance with their gender identity.

However, the information presented on official documents and in state registries, such as gender information, does not merely indicate a person’s legal status in a community. Instead, it also influences a person’s social status. Smart has precisely analysed the “law’s ability to impose its definition of events on everyday life.”Footnote 7 Accordingly, legal statuses reflected on official documents impose themselves on everyday life events by influencing the social status that a person enjoys in a community. Foucault and Scott similarly argue that state classification can be a major instrument in normalising and institutionalising social divisions and hierarchies.Footnote 8 Indeed, an increasing number of studies reveal that a legal gender marker on IDs can generate a variety of negative effects on the social status that gender non-conforming persons enjoy.Footnote 9

For example, a study on legal gender recognition conducted by the EU Commission in 2018 and 2019 analyses the various social effects of gender information on identification documents for trans persons. It shows that changing one’s legal gender has sometimes led to increased feelings of security, improved people’s access to certain services, reduced the psychological burden on them, and enabled self-recognition.Footnote 10 Gender recognition has also had positive implications for people’s mental health and self-confidence, reducing the stress and shame experienced in identity controls. Participants in the EU survey further explained that legal gender recognition made them feel empowered, gave them the confidence to take up travelling, and increased their access to employment and education. Moreover, being recognised with one’s gender identity has sometimes prevented instances of misgendering and increased people’s acceptance among family members and social environment, which shows how legal recognition can act as an instrument of social validation. Lastly, legal gender recognition has further correlated with improvements in accessing trans-specific health care and has facilitated entry into marriage or legal partnerships.Footnote 11

Data further discloses that discrimination against trans persons with an “incongruent” gender marker on IDs is caused not only by transphobia, but it is also mediated by other forms of discrimination, such as race and class discrimination. Whilst data on intersectional forms of discrimination experienced by trans persons in Europe is still scarce, the 2015 U.S. Transgender Survey provides an indication of how experiences of discrimination are shaped by intersecting social statuses. The Survey reveals that 2% of the 27,715 respondents had been assaulted or attacked when showing “incongruent” identity documents in the U.S. However, the number was higher for Middle Eastern (9%), “American Indian” (6%) and Black respondents (4%).Footnote 12 The surveyed experiences also differed according to the participants’ gender identity, as 13% of trans women, 9% of men and 6% of non-binary persons were asked to leave a certain place after showing their “incongruent ID”.Footnote 13

This data suggests that gender information on identity documents has negative effects especially for trans women and trans persons who are also racialised as non-white, creating compounded disadvantages for non-white trans women.Footnote 14 Furthermore, the effects of gender markers are particularly detrimental for trans persons who run a high risk of being subjected to identity and security checks. These can include individuals in places administered by authoritarian or semi-authoritarian regimes, sex workers, persons in humanitarian emergencies, homeless people, migrants, racialised persons, persons accessing state benefits (e.g., ration cards) and persons who are seen as belonging to certain religious or ethnic groups. As mentioned, the increased number of security checks conducted by private and public actors in the COVID-19 pandemic has put an additional burden on these already-policed trans populations.

One of the main purposes of legal gender recognition is thus to avoid the above-mentioned negative consequences of showing “incongruent” gender markers on IDs. It can prevent the forced outing of trans persons by providing them with the possibility of aligning their official documents with their gender identity, gender expression and/or gender role. However, the EU Commission has stressed that despite the fact that providing access to gender recognition can significantly improve the well-being of trans persons, it is not a silver bullet for eliminating the wide-spread prevalence of discrimination against trans persons. Easily accessible gender recognition can avoid public scrutiny of trans persons who “pass”Footnote 15 in the gender noted on their official documents. However, those who do not pass will continue to face discrimination, violence and harassment in the public, including when showing their documents.Footnote 16 Moreover, not only have few European states recognised non-binary legal gender categories up to now, but showing an X as a gender marker on official documents can also lead to even more discrimination than showing an M or an F.Footnote 17

This highlights that gender recognition will alone not resolve the root cause for the discrimination and exclusion experienced by trans persons. Deeply engrained transphobia and cisnormativityFootnote 18 in legal and social relations will need to be tackled also by other means. However, gender recognition can constitute an important instrument to make the everyday lives of trans persons easier and safer.

3 European state practice of gendering legal status

As legal gender recognition can positively impact the well-being of some individuals, trans persons have started to fight for the right to change the legal gender in Europe decades ago. According to Pfäfflin, Swiss judges were the first ones in modern history to grant trans persons the right to change their legal gender status after the undertaking of surgical interventions in the 1930s.Footnote 19 However, Sweden reportedly became the first state in the world to adopt a specific law codifying the right to change one’s legal gender in 1972.Footnote 20 Since then, many states in Europe and elsewhere followed the Swiss and Swedish model of granting trans persons the right to change their legal gender either through court decisions or the adoption of legislation.

In an approach similar to that taken in its previous case law,Footnote 21 the European Court of Human Rights in X and Y v. Romania (2021) analysed current practice in relation to the right to gender recognition of Council of Europe member states. For this purpose, it relied on the Trans Rights Map 2020 established by Transgender Europe, which showed that nowadays most Council of Europe states allow a change of legal gender and/or name, at least under certain circumstances. Only ten Council of Europe member states did not provide any clear procedure for gender recognition in 2020, whereas the rest provided, at least to adults, some sort of juridical and administrative route to changing their legal gender.Footnote 22 Some of these routes rely on requirements that applicants must fulfil before being allowed to change their legal gender. These include the requirement of being sterilised, of having undergone gender affirmation treatment, of being diagnosed with a gender identity disorder, or of being unmarried.Footnote 23 However, an increasing number of states – at least nine states at the time of writing (early 2022) – allow adults and sometimes also minors to change their legal gender without having to satisfy any of these conditions.Footnote 24

The introduction of unconditional gender recognition procedures correlates with an increase in the number of persons changing their gender and/or name.Footnote 25 This might also be due to the fact that the financial costs of changing one’s legal gender are lower in states that provide gender recognition on an unconditional basis than in states with restrictive gender recognition laws. In countries that ask individuals to fulfil intrusive medical requirements, or where requirements differ from case to case, the median cost for legal gender recognition is €814–822. This amount is far higher than the monthly minimum wage in several EU Member States. The median cost of legal gender recognition is instead about €80 in states that provide for the possibility of changing one’s legal gender without fulfilling any restrictive requirements.Footnote 26

In fact, legal gender recognition can be quite costly, especially if the right to change one’s legal gender is dependent upon the payment of fees and the undertaking of medical and psychological consultations. These psycho-medical services can be expensive and create a disproportionate burden for persons in financially precarious situations or without access to public health care. Indeed, the EU Commission report holds that individuals facing intersectional forms of exclusion, such as non-citizens, persons with disabilities, and persons from a low socio-economic class, face additional obstacles to access gender recognition next to the general barriers created by restrictive requirements.Footnote 27

Not only do the procedures to change legal gender vary in different states but also the possibility of changing one’s name is guaranteed differently across European states.Footnote 28 Most people change their name alongside changing their legal gender, since most first names and some last names are gendered and can thus indicate a person’s legal gender. This is especially the case in states where it is mandatory to have a name that is gendered in the same binary manner as one’s legal gender. For example, Hungarian law requires parents to give their child a first name that corresponds to their legal gender,Footnote 29 whilst the same is true for Germany, with the exception that Germany allows parents to assign a gender-neutral first name.Footnote 30 In some countries, such as Greece and Poland, last names can be gendered, mostly through the addition of a gender-specific suffix to the name (e.g., Pappas/Papadopoulos, Kowalski/Kowalska).Footnote 31

The discussion on names shows that gender markers (i.e., F, M or X) are not the only means to present gender information on official documents. Instead, names, titles (e.g., Mr/Ms/Mrs, M/Mme/Mlle) and personal identity codes on IDs can also transmit information on a person’s legal gender. In fact, it is mostly the names reflected on COVID Certificates that create problems for trans persons when having to show these documents during the on-going pandemic. Moreover, many states in the Council of Europe, especially Eastern European and Scandinavian states, issue personal identity codes for social security and taxation purposes that reflect a person’s legal gender.Footnote 32 For instance, the Czech Identity Number, which is shown on the national identity card and needed for most official actions in the Czech Republic, contains two specific digits that express a person’s legal gender. If these specific digits are within the range of 01–12, the person concerned is legally considered male, but if they are within the range of 51–62, the person’s legal gender is female.Footnote 33 Reflection on these gendered personal identity codes makes it clear that the right to gender recognition entails being able to change any information on official documents and in civil registries that can indicate the status of a person’s legal gender.

4 A long journey in Strasbourg…

The fact that most Council of Europe member states nowadays provide a gender recognition procedure has also been induced by relevant judgments of the European Court of Human Rights. For instance, both France and the United Kingdom introduced the possibility of changing one’s legal gender only after having lost a case on this matter at the European Court of Human Rights.Footnote 34 The Court was for the first time asked to rule on the question whether the European Convention on Human Rights (ECHR) ensures the right to change one’s legal gender in Rees v. The United Kingdom (1986).Footnote 35 Since then, it has delivered numerous judgments on the right to gender recognition, some of which are discussed in this article.

4.1 The immutability of the legal gender assignment

In Rees v. The United Kingdom, the applicant claimed that denying him the right to change the legal gender on his UK birth certificate constituted a violation of Article 8 ECHR, which ensures the right to a private and family life. The Court ruled against the applicant in this case and found no positive obligation that would require the UK to ensure the possibility of changing legal gender on a birth certificate. It concluded that it was within the UK’s margin of appreciation to decide on the balance between an individual’s rights to private life and public interests, because the requested changes in the birth registry “would have important administrative consequences and would impose new duties on the rest of the population.”Footnote 36

An argument put forward by the UK in Rees was that the information on birth certificates must be immutable as they reveal “historical facts”. These facts were needed “to enable the establishment of the connections of families for purposes related to succession, legitimate descent and distribution of property.”Footnote 37 This argument used by the UK government to justify the denial of gender recognition implies that there are laws that make a difference based on people’s gender in establishing the right to inherit, receive and own property. In the context of the 1980s, the laws in question were laws that discriminated against women in terms of their access to property. Thus, gender discriminatory laws are based on the use of gender as a stable legal identity characteristic.

The Court accepted the argument offered by the UK in this case and similarly referred to the need to ensure succession, legitimate descent, and distribution of property as justification for denying an individual the right to change the gender on the birth certificate.Footnote 38 This is noteworthy since, at the time of the proceedings, the UK had repealed most laws that categorically discriminated against women in terms of their access to property.Footnote 39 Even though the reasoning brought forward by the UK was not entirely consistent, it shows that an underlying reason for the existence of legal genders is the existence of laws making a difference based on gender. Historically, these laws often discriminated against women, but, as discussed above, they nowadays also include gender equality laws that aim to reverse historically established structures of inequality.

4.2 Grounding legal gender assignment in genitocentrism

The Rees case was followed by multiple other cases concerning the right to gender recognition at the European Court of Human Rights. Trans communities in Europe had an interim success in B. v. France (1992), where the Court found that Article 8 ECHR created a positive obligation on France to allow the applicant to change their legal gender on at least some official documents.Footnote 40 However, it was only in Christine Goodwin v. The United Kingdom (2002)Footnote 41 that the Court unequivocally recognised an applicant’s right to change the legal gender on her birth certificate and thus for all legal purposes (i.e., marriage). It found that the state had no longer struck a fair balance between the applicant’s right to private life and the public interest of avoiding any major bureaucratic changes to the birth registration system that could affect “access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance.”Footnote 42

The fact that the applicant, Goodwin, had undertaken gender affirmation treatment considerably affected the Court in its decision in the Goodwin case. The Court argued that since Goodwin had modified her body appearance through gender affirmation surgeries, which were paid for by the UK National Health Service, she must have the right to change legal gender so as to ensure “coherence of the administrative and legal practices.”Footnote 43 This reasoning relied on the logic that persons with a normatively looking “feminine” body appearance must also be legally recognised as women.

Gonzalez-Salzberg argues that the Court’s focus on the applicant’s body appearance for establishing her right to gender recognition represents an example of “genitocentrism”.Footnote 44 This term was coined by Sharpe to denote the common assumption that the appearance of a person’s genitals determines a person’s legal gender.Footnote 45 Whilst the Goodwin case was thus a milestone in the recognition of the right to gender recognition in Europe, it reproduced the idea grounded in genitocentrism that a person’s legal gender must correspond to an individual’s physical appearance in a cisnormative manner. The tailoring of the Court’s decision to the circumstances of the applicant, who had undertaken gender affirmation treatment, further meant that the Goodwin judgment did not prevent states from making gender affirmation surgery a precondition for allowing a change of legal genders.

4.3 Protecting heteronormative laws through legal gender

The Goodwin case presented not only an example of genitocentrism but also exposed the relationship between legal gender recognition and heteronormativity in the law. In addition to recognising the right to change one’s legal gender, the Court held that Article 12 of the European Convention on Human Rights ensured Goodwin’s right to marry her partner, a legally recognised man.Footnote 46 In previous case law, the Court had allowed states to deny trans persons to marry somebody with a legal gender different from their gender identity, alongside denying them the right to gender recognition.Footnote 47 The crux behind these previous decisions was that if the applicants had been allowed to marry their partner with an opposite gender identity but with the same legal gender, their marriage would have legally been a homosexual one as long as they could not change their own legal gender. The Court thus needed to allow states to deny the applicants the right to marry their partners in order to create coherence with its stance that states are under no obligation to recognise same-sex marriage, as explicitly stated in other cases.Footnote 48 However, in Goodwin, the Court reasoned that once Goodwin would change her legal gender, marrying a person legally recognised as man would no longer constitute a homosexual marriage. The marriage must thus be permitted by the law.

The role of heteronormativity in establishing the right to gender recognition manifested in the Goodwin case is also reflected in the Court’s judgment in Hämäläinen v. Finland (2014). In this case, the Court held that Finland had not violated Article 8 ECHR by requiring a married trans persons to get divorced or to change their marriage to a registered partnership before allowing them to change their legal gender. At the time of the proceedings, Finland had not yet recognised same-sex marriage, which meant that it did not approve the change of legal gender of a married person since this would render their marriage legally a homosexual one.Footnote 49

The Court’s reasoning in Goodwin and Hämäläinen exposed what some scholars and judges have argued, namely that legal gender assignment has functioned as a tool to safeguard marriage as a heterosexual union.Footnote 50 The EU Commission has held similarly that the requirement to be unmarried for legal gender recognition as upheld in Hämäläinen “represent[s] society’s primary interest to enforce the binary gender system.”Footnote 51 Already in Rees in 1986, the Court referred to the institution of marriage as a means to demonstrate the need to have a proof of one’s sex assigned at birth, since “marriage is defined as a voluntary union for life of one man and one woman to the exclusion of all others.”Footnote 52 This shows the role of the legal gender assignment to individuals at birth in protecting heteronormativity in the law.

4.4 Outlawing genitocentrism

Whilst the Goodwin case served for a long time as the standard on legal gender recognition set by the European Court of Human Rights, recent cases have overruled some of the decisions reached in Goodwin. In fact, the genitocentrism that was represented in the Goodwin case is no longer reflected as such in the Court’s current interpretation of the ECHR. Instead, the Court’s judgments outlawed the requirement to undergo gender affirmation treatment as a precondition for accessing gender recognition in Council of Europe member states in A.P., Garçon and Nicot v. France (2017) and X and Y v. Romania (2021).

In A.P., Garçon and Nicot v. France, the Court held that requiring individuals to undertake sterilisation or any medical procedure that likely results in sterilisation before allowing them to access gender recognition constitutes a violation of Article 8 ECHR. This represents an important decision for safeguarding the right to bodily integrity of trans persons. However, the Court also ruled that asking individuals to be diagnosed with a gender identity disorder, mostly called “gender dysphoria”, and/or to undergo medical examinations does not violate the ECHR.Footnote 53

The more recent decision in X and Y v. Romania goes further by holding that states can no longer require individuals to undertake “gender reassignment surgery” before allowing them to change the legal gender.Footnote 54 It thus departed from its previous positions which reflected the genitocentric assumption that the appearance of genitals determines one’s legal gender assignment. It found that Romania did not struck a fair balance between the applicants’ rights to private life and the public interest of safeguarding legal certainty and inalienability, consistency and reliability of civil status.Footnote 55 This decision supports the vision provided by the Council of Europe Parliamentary Assembly, which, in a resolution in 2015, called on member states to “develop quick, transparent and accessible procedures, based on self-determination, for changing the name and registered sex of transgender people.”Footnote 56 However, aligning the jurisprudence of the European Court of Human Rights entirely with this vision requires that the Court further outlaws other requirements for gender recognition, such as the condition of being diagnosed with a gender identity disorder or of being unmarried.

Even though the European Court of Human Rights has still to declare certain requirements for accessing gender recognition to be contrary to the ECHR, it has already clarified that states cannot categorically deny the right to gender recognition to non-nationals. In Rana v. Hungary (2020), the Court recognised that Hungary had violated Article 8 ECHR by denying a refugee, who could not change his legal gender in his country of origin, the right to access the Hungarian gender recognition procedure.Footnote 57 This decision thus makes clear that immigration status cannot be used so as to exclude categorically certain individuals from changing their legal gender in their country of residence.

However, whilst the trans communities have had many legal victories in the last two decades, the recent case Y. v. Poland (2022) draws attention to the fact that various aspects of the right to gender recognition are far from being settled in European human rights law. In this case, the claimant had changed his legal gender, and such change was merely added as annotation to his original birth certificate. The authorities refused issuing a new birth certificate that noted his current legal gender. As a consequence, the claimant alleged a violation of Article 8 and 14 of the European Convention on Human Rights due to the forced outing of his trans history through the annotation on his birth certificate.Footnote 58

The Court sided with Poland by holding that mentioning a change of legal gender on a person’s birth certificate was not contrary to the Convention. It justified its decision by holding that the birth certificate can be mostly substituted by other documents that do not reflect a change of legal gender, including a short extract of the birth certificate.Footnote 59 Moreover, despite recognising that annotating a change of legal gender on the birth certificate “could cause the person concerned to experience some distress,”Footnote 60 the Court found that knowing a person’s gender assigned at birth could be in “public interests” in certain circumstances. As Cannoot points out, this reflects the “stereotyped, cisnormative logic of the official sex/gender registration system,”Footnote 61 in which identifying with the gender assigned at birth remains the status quo and trans persons are rendered the exception by making their trans history legally visible.

4.5 Disconnecting legal gender and names

Whilst the jurisprudence on gender recognition of the European Court of Human Rights focuses mostly on changes of gender markers, the Court addressed the right to change one’s first name explicitly in S.V. v. Italy (2018). In this case, it held that Italy had violated Article 8 ECHR by denying the applicant a change of name before she had modified her legal gender. Changing one’s legal gender on official papers and civil registries in Italy was at that time possible only after having undertaken gender affirmation surgery and having obtained a court order. According to the European Court of Human Rights, during this lengthy procedure for changing the applicant’s legal gender, Italy had a positive obligation to allow her a change of first name.Footnote 62

The S.V. case recognised that states must not categorically deny the possibility of carrying a first name that does not correspond to a person’s legal gender in a binary cisnormative manner. However, it is important to note that the Court’s decision in S.V. v. Italy was a response to the specific circumstances of the case. The Court took the view that the Rome District Court had violated the applicant’s right to a private life because it had not taken into account the applicant’s concrete situation when refusing to allow her a change of name. S.V. had started to transition several years before, and her physical appearance and social role had long identified her as a woman. Given these circumstances, the Court held that it was disproportionate to delay a change of the applicant’s name for two and a half years until she had undergone gender affirmation treatment and consequently changed her legal gender. It was “the rigid nature of the judicial procedure for recognising the gender identity of transgender persons [that] had left S.V. for an unreasonable period of time in an anomalous position apt to engender feelings of vulnerability, humiliation and anxiety.”Footnote 63

Despite the fact that the European Court of Human Rights’ decision in S.V. v. Italy responds to a context-specific case, it sets an important legal precedent for trans persons’ right to change their name in Europe.Footnote 64 Being able to erase one’s “deadname”Footnote 65 on official documents and in civil registries is especially relevant in situations when trans persons want or need to use documents that do not carry a gender marker or that cannot be modified after legal transition. For example, many university diplomas do not contain a gender marker, but the name mentioned on the diploma can provide an indication of a person’s legal gender. These diplomas are sometimes unchangeable after they are issued, which means that showing a person’s deadname on them can cause forced outings in the future, especially in professional contexts when diplomas have to be shown.Footnote 66

Moreover, most drivers’ licences in Europe and a few personal identity cards, such as the German or Greek personal identity cards, do not carry any gender marker. The same is mostly true for COVID Certificates, which rarely show a legal gender but do mention first and last names. Changing the name on these documents allows trans persons to use them as legal proofs of identity while undergoing a change of legal gender in the civil registry. Whereas modifying legal gender can affect a person’s rights and duties (since some laws continue to make a difference based on gender), changing a name rarely modifies a person’s legal status. Changing a name is also quite common, considering that most marriages result in the adoption of a new surname by one person. It thus seems questionable whether refusing a change of name to trans persons is proportionate to the purpose of ensuring an accurate population registration, safeguarding personal identification, and linking the individual concerned to a family, as proposed in S.V. v. Italy.Footnote 67

5 The future of legal gender at the European Court of Human Rights

The foregoing discussion has shown that the approach of the European Court of Human Rights to addressing the right to gender recognition has changed significantly since 1986. The Court is currently moving towards endorsing unconditional gender recognition laws, which allow an individual to change their legal gender and/or name without fulfilling any restrictive requirements. However, the recent decision in Y. v. Poland shows that cisnormativity is still deeply in engrained in legal systems and judges’ conception of appropriate gender norms in Europe.Footnote 68 Moreover, certain European states, such as Hungary, have recently implemented laws that curtail the right to gender recognition and clearly go against the jurisprudence of the European Court of Human Rights.Footnote 69

The saga of trans persons’ right to be legally recognised with their gender identity and their name on an equal basis with cis persons is far from over. Not only are several cases concerning the right to gender recognition currently pending at the European Court of Human Rights, but also social and legal perspectives on the legitimacy of using gender as a (binary) identity characteristic are constantly evolving. This is shown by the fact that an increasing number of Council of Europe states are adopting unconditional gender recognition laws and/or recognise non-binary legal gender categories. Moreover, the question of why states continue to make categorical gender differences between humans by registering a legal gender at birth is increasingly debated among scholars and law-makers in Europe.Footnote 70

In the future, the European Court of Human Rights will likely be asked to re-address the legality of the so-called “divorce requirement”, as upheld in the Hämäläinen case. Moreover, it will certainly be confronted with the question of whether the highly prevalent state practice of asking individuals to be diagnosed with a gender identity disorder before allowing them to change their legal gender is proportionate to the public interest of ensuring the stability of legal status. Another question likely to be debated by the Court in the future is whether requiring judicial proceedings, in the form of having to ask courts for permission to change one’s legal gender, instead of going through an administrative procedure, is in accordance with the ECHR. In addition, the Court is expected to provide its decision in the pending case of Y v. France in the near future. This case is the first one at the European Court of Human Rights that concerns an intersex person who is claiming the right to change their legal gender to “neutral” or “intersex” in the French civil registry.Footnote 71

The future of legal gender at the European Court of Human Rights will, however, not only depend on the different subject matters decided by the Court but also on how the Court approaches the issue of gender recognition. Until now, the Court has treated issues of gender recognition as exclusively falling within the ambit of Article 8 ECHR. The applicants in relevant cases have always invoked the right to private life (Article 8), but in some cases, they have additionally also claimed a violation of the right to be free from torture, degrading and inhumane treatment (Article 3)Footnote 72 and the right to non-discrimination (Article 14).Footnote 73 Nevertheless, the Court has largely ignored claims brought under Article 3 and 14 when discussing the right to gender recognition.

I see great value in treating the denial of gender recognition as violating the right to be free from torture, degrading and inhuman treatment, an approach also suggested by Bassetti.Footnote 74 This could draw attention to the violent effects generated by legal misrecognition. Moreover, discussing issues of gender recognition as part of the right to non-discrimination would highlight that trans persons’ gender identities are currently not recognised on an equal basis with cis persons’ gender identities. This would help to dismantle the cisnormativity currently codified in the law and ensure equality, especially in the global health crisis where identity papers are highly relevant in accessing basic services, entitlements and spaces.

However, an even more effective tool to weaken cisnormativity in the law could be to address issues of legal gender recognition as ensuing negative state obligations. So far, the European Court of Human Rights has treated the right to gender recognition as being part of the positive state obligations deriving from Article 8. It has reasoned that states have a positive duty to implement procedures that allow modifying the legal gender. However, addressing the right to gender recognition from the perspective of negative state obligations could shift the question to whether states must abstain from assigning a gender to individuals. In fact, this would fit the Court’s common approach, since the right to private and family life is paradigmatic for engendering negative obligations that require states to refrain from interfering into a person’s life.Footnote 75 This also highlights that the use of gender as a (binary) identity characteristic assigned to individuals is part of a general discussion on how far states can interfere in people’s lives in their population management and surveillance.

The latest point further raises the question of whether the right to gender recognition in the future will also include being free of any state-assigned gender label. My discussion of the Rees case highlighted that legal gender assignments have historically played a strong role in ensuring the categorical exclusion of women from certain (property) rights. Moreover, the European Court of Human Rights’ jurisprudence reflects the interrelationship between assigning a legal gender to individuals and establishing heteronormativity in the law. Hence, other than codifying heterosexism in the law, what purposes exist for using gender as a legal identity characteristic? Why do states continue to assign a legal gender to individuals at birth and on other instances in life?

These questions are complicated ones and answering them requires having context-specific understandings of social and legal relations. Responses to these questions will need to take into account the utility of relying on legal gender categories for reversing historical patterns of structural inequality, such as through gender equality laws, like equal pay legislation. In any case, the European Court of Human Rights will likely have to deliberate on the necessity and proportionality of assigning a legal gender to individuals in the future since an increasing number of individuals in Europe seek to live without any state-assigned gender label.Footnote 76 The future of legal gender at the European Court of Human Rights is thus uncertain and open to be constructed in a way that destabilises cisnormativity and heterosexism in social norms and laws in Europe.