Transgender EuroStudy – Legal Survey and Focus ... - ILGA Europe

19 April 2008
" … In the Court’s view, (they) may therefore claim that the very essence of (their) right to
marry has been infringed." 20
The Court further held that it is also an artifice to claim that although Article 12 secures the
fundamental right of a man and woman to marry and to found a family, people do not have to be
fertile and able to conceive children in order to enjoy marriage. 21 However, the Court went on to hold:
"it is for the Contracting State to determine inter alia the conditions under which a
person claiming legal recognition as a transsexual establishes that gender re-assignment has
been properly effected or under which past marriages cease to be valid and the formalities
applicable to future marriages (including, for example, the information to be furnished to
intended spouses)" 22
thus allowing Member States to decide the terms upon which a trans person can marry in their
new gender. States who wish to claim the right to be exempt from affording privacy and marriage
rights to transsexual people will have to show that there is, or will be, a substantial detriment to the
public interest.
States must also ensure that transsexual people who wish to marry in their new gender role can
do so. This implies creating a mechanism whereby a transsexual person can claim legal recognition of
their preferred gender role. However, States have the right to determine the conditions under which
transsexual people have the right to marry. These might be, for example, post-operative 23 status, or a
requirement that future spouses are told of the trans status. Put simply, the conditions required to
obtain a valid marriage to a member of the opposite gender may well be stricter than the
requirements to have birth certificates changed.
In the case of Grant v United Kingdom 24 (2006) the Court held that the State had contravened the
right to private and family life (Article 8 ECHR) of a trans woman by refusing to pay her a pension as a
woman at the age of female retirement, indirectly supporting the slightly earlier decision of the ECJ in
Richards (see below).
Also, in the Irish case of Lydia Foy an application to the ECHR was withdrawn after the State
agreed to recognise her new name, however, the Court went further by making the first declaration of
incompatibility of an Irish law with the European Convention on Human Rights. 25 The Irish Government
has created a working group to look into complying with European law in this area.
Finally, there has recently been a successful decision by the ECHR in favour of a Lithuanian
applicant. In L v Lithuania 26 the Court held that L’s right to private and family life had been contravened
when he was unable to obtain, in Lithuania, the gender reassignment treatments he needed in order
to receive legal recognition in his new gender. Lithuania did not ban gender reassignment surgeries,
and the Civil Code included a superior code to allow gender reassignment surgeries, but the sub-code
which would facilitate the process of developing these medical services had never been implemented.
The State had argued that L could access surgery abroad, and the State might even fund it, but the
Court held that this hypothetical system which nobody had ever made use of, was not enough to
avoid State liability.
20
I, Supra at note 5, para
81.
21
Goodwin, Supra at
note 5, para 98.
22
I, Supra at note 5, para
83.
23
See note 13 above.
24
Supra at note 5.
25
Irish Law Updates,
November 19 2007, acc:
14 /12/07 at
http://www.ucc.ie/law/
irishlaw/blogger/2007
/11/transgender-lawlydia-foy-in-highcourt.html.
26
Supra at note 5.