CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 avril 2017

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FRANCE   (Applications nos. 79885/12, 52471/13 and 52596/13)             JUDGMENT [Extracts]       STRASBOURG   6 April 2017           This judgment became final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.P., Garçon and Nicot v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   André Potocki,   Faris Vehabović,   Yonko Grozev,   Carlo Ranzoni,   Mārtiņš Mits,   Lәtif Hüseynov, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 21 and 28 February 2017, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in three applications (nos.   79885/12, 52471/13 and 52596/13) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three French nationals, A.P. (“the first applicant”), Émile Garçon (“the second applicant”) and Stéphane Nicot (“the third applicant”) on 5 December 2012 (as regards the first applicant) and 13 August 2013 (as regards the second and third applicants). The President of the Section acceded to the first applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court). 2.     The first applicant was represented before the Court by SCP Gatineau-Fattaccini, a law firm authorised to practise in the Conseil d’État and the Court of Cassation. The remaining two applicants were represented by SCP Thouin-Palat and Boucard, a law firm authorised to practise in the Conseil d’État and the Court of Cassation, and by Mr Julien Fournier and Mr Emmanuel Pierrat, lawyers practising in Paris. The French Government (“the Government”) were represented by their Agent, Mr François Alabrune, Director of Legal Affairs at the Ministry of Foreign Affairs. 3.     The applicants, who are transgender persons, alleged that the refusal of their requests to have the indication of gender on their birth certificates corrected, on the grounds that persons making such a request had to substantiate it by demonstrating that they actually suffered from a gender identity disorder and that the change in their appearance was irreversible, amounted to a violation of Article 8 of the Convention (taken in conjunction with Article 3 of the Convention in the first applicant’s case). Alleging a violation of Article 8 read in conjunction with Article 3, the first applicant also criticised the fact that the domestic courts had made the correction of his birth certificate conditional on his undergoing an intrusive and degrading expert medical assessment. He further complained, under Article 6 § 1 of the Convention, “possibly taken in conjunction with Article 8”, of a breach of his right to a fair hearing, stemming from the fact that the domestic courts had allegedly committed a manifest error of assessment in finding that he had not provided proof of an irreversible change in his appearance. The second and third applicants also complained of a violation of Article 14 of the Convention taken in conjunction with Article 8. 4.     On 18 March 2015 the Government were given notice of the complaints concerning Articles 3, 8 and 14 of the Convention. 5.     On 15 June 2015 the non-governmental organisations Alliance Defending Freedom (ADF) International and, jointly, Transgender Europe, Amnesty International and the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), were given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     On the date of lodging of the applications, the applicants were regarded for civil-law purposes as belonging to the male sex. For that reason, the masculine form is used in referring to them; however, this cannot be construed as excluding them from the gender with which they identify. A.     Application no. 79885/12 7.     The first applicant was born in 1983 and lives in Paris. 8.     The first applicant stated that, although he had been entered in the register of births as being male, he had always behaved like a girl and his physical appearance had always been very feminine. As an adolescent and young adult he had struggled considerably with his gender identity, since the male identity assigned to him at birth did not match his female psychological and social identity. In 2006, after several doctors had diagnosed a gender identity disorder known as “Harry Benjamin syndrome”, he had begun a transitional phase, living in society as a woman and undertaking a course of hormone treatment under the supervision of an endocrinologist, Dr H., and a neuropsychiatrist, Dr Bo. 9.     The first applicant submitted three medical certificates issued by these doctors during the period in question. In the first two certificates, dated 12   April 2007, Dr Bo. stated that the first applicant had been under his supervision since 27 April 2005 “for a syndrome typical of gender identity disorder”. He stated that “there [was] thus an observable difference between his current physique and the photograph on his identity card”, and that “there [were] no medical or psychological contraindications for [an] operation ... on the Adam’s apple”. In the third certificate, dated 16 January 2008, Dr H. stated that he had been overseeing the applicant’s hormone treatment for “typical primary gender identity disorder since 1 June 2006, together with Dr B.”, and that “following endocrinology and metabolic tests, including karyotyping, [he was being] treated with anti-androgens and oestrogen”. The doctor concluded that “the marked, plausible and genuine nature of his gender dysphoria, together with the ‘real life test’, [made him] eligible for reassignment surgery, of which [he had] a legitimate expectation”. 10.     The first applicant also produced a medical certificate issued on 3   April 2008 by another psychiatrist, Dr Ba., which certified that he had “typical Harry Benjamin syndrome” and that “there [were] currently no contraindications for the medical and/or surgical treatment entailed in the gender reassignment sought by the patient”. 11.     The first applicant stressed that he had not originally intended to undergo mutilating gender reassignment surgery, but had resigned himself to it because the French courts’ case-law made it a precondition for a change in civil status. 12.     The first applicant decided to undergo surgery in Thailand, performed by Dr S., whom he described as a “world-renowned specialist”. The operation was carried out on 3 July 2008. Dr S. issued the following medical certificate: “... following a period of diagnosis by psychosexual specialists and an appropriate period of living full-time with a female identity, the above-mentioned person was diagnosed with a gender identity disorder (F64.0) defined as DSM IV, ICD-10. She was accepted for the appropriate surgical treatment, namely gender reassignment surgery. ... The surgery consisted of an orchidectomy, a vaginoplasty, a clitoroplasty and a labiaplasty, combined in a single operation. On completion of the operation the male sexual organs ... were replaced by organs that are female in appearance and function, with the exception of the reproductive organs. This involved removing the male reproductive organs, resulting in irremediable infertility. In accordance with all established medical and legal definitions, the operation is irreversible and means that Mr [A.P.]’s male sexual identity has been permanently changed to a female sexual identity.” 13.     In a certificate signed on 10 September 2008 Dr H. confirmed that the first applicant “[had] undergone irreversible male-to-female gender reassignment surgery”, and stressed that “the request for a change in civil status [was] compelling and admissible [and was] an integral part of the treatment”. 14.     The first applicant produced four further certificates. The first, dated 26 May 2009, was signed by Dr W., a surgeon. It stated that the first applicant had undergone “a cosmetic laryngoplasty as part of male ‑ to ‑ female transitioning, after irreversible reassignment surgery was performed on the external genitalia”. In the second certificate, dated 27 May 2009, a speech therapist stated that she had “worked with [A.P.] for two years on feminisation of her voice”, and that “her voice and appearance [were] now wholly feminine and consistent with each other”. The third certificate, signed on 23 July 2009 by Dr B., a psychiatrist, read as follows:   “... [A.P.] is under supervision for typical Harry Benjamin syndrome, for which a gender reassignment process has been under way for several years. She has had hormone treatment and the surgery required to make her appearance and behaviour female. It is therefore legitimate, in the interests of her social and professional integration, for her civil status to be brought into line with her appearance and her wishes. ...” 15.     In the fourth certificate, dated 16 March 2010, Dr P., a doctor specialising in fundamental psychopathology and psychoanalysis and a psychotherapist, stated that he had started psychotherapy sessions with the first applicant and, in particular, had “noted ... the consistency between Ms   [A.P.]’s statements and her preferred gender identity”. 1.     Judgments of the Paris tribunal de grande instance of 17   February and 10 November 2009 16.     On 11 September 2008 the first applicant brought proceedings against State Counsel in the Paris tribunal de grande instance seeking a declaration that he was now female and that his first name was A. (a female forename). He submitted, in particular, the medical certificates of 12 April 2007 and 16 January and 10 September 2008, and the certificate issued by Dr S. On 16 October 2008 State Counsel requested a multi-disciplinary expert assessment, on the grounds that the applicant’s surgery had been performed abroad. (a)     Interlocutory judgment of 17 February 2009 17.     On 17 February 2009, in an interlocutory judgment, the Paris tribunal de grande instance stressed as follows:   “Where a diagnosis of gender identity disorder has been made following a thorough assessment and the person concerned has undergone irreversible physical changes for therapeutic purposes, it is appropriate to consider that, although the person’s new gender status is imperfect in that the chromosomal make-up is unchanged, he or she is closer, in terms of physical appearance, mindset and social integration, to the preferred gender than to the gender assigned at birth.”   However, the court further found: “Irrespective of the status of the authors of the medical certificates produced in support of the application, the need for a firm diagnosis means that a multi ‑ disciplinary expert assessment should be carried out in order to establish the applicant’s current state from a physiological, biological and psychological perspective and to investigate the persistence of the alleged disorder in his past.”   The court appointed three experts – a psychiatrist, an endocrinologist and a gynaecologist – and requested them, after interviewing and examining the first applicant and consulting the medical certificates and operation reports submitted, to: “(a)     describe the applicant’s current physical state ... and the presence or absence of any external or internal genitalia of either sex; order, with the applicant’s consent, any samples and laboratory tests capable of establishing the biological and genetic characteristics of the applicant’s sex; state whether a mistake could have been made in the sex recorded on the birth certificate, or an organic or biological change could have occurred later; look for traces of possible surgery aimed at bringing about or completing a transformation of the genitalia or secondary sexual characteristics; state whether the patient has been treated with either medication or hormones; state whether the surgery or hormone treatment was carried out on account of pre-existing physical anomalies or because of the patient’s psychological state, leaving aside his deliberate intentions;   (b)     describe [the first applicant’s] mental state and behaviour as regards his gender and, in so far as possible, indicate their origins and trace their development; report on any course of psychotherapy followed, specifying its duration and outcome; state whether the patient suffers from any mental disorder and, if so, specify the nature of that disorder;   (c)     express a view on the possible existence of gender identity disorder, giving reasons for making or ruling out such a diagnosis; state whether, in the light of all the available individual medical data (physiological, biological and physical), the person concerned should be regarded as male or female.” 18.     The court ruled that the costs of the expert assessment should be met by the first applicant, and ordered him to deposit a sum of 1,524 euros (EUR) for that purpose. 19.     The first applicant refused to submit to an expert assessment on the grounds that this type of assessment, as well as being very costly, also failed to respect the physical and mental integrity of the person concerned. In his view the documents he had submitted, which had been written by specialist doctors and noted the genuine nature of his change of gender, were more than sufficient and it was not necessary to make him undergo a further battery of traumatic tests. 20.     In an order of 13 March 2009 the Deputy President of the Paris Court of Appeal refused the first applicant leave to appeal against this interlocutory judgment. (b)     Judgment of 10 November 2009 21.     On 10 November 2009 the Paris tribunal de grande instance rejected the first applicant’s request. It stressed that the certificates produced by the first applicant, however informative, did not answer the court’s questions regarding the origin, nature, persistence and consequences of the disorder in question, and that the doctors who had been consulted could not, in the space of a few lines intended to allow the operation to go ahead, carry out the work of three experts instructed on the basis of a very wide-ranging and detailed mandate. The court noted in particular that the certificates did not mention the applicant’s mental state and attitude with regard to his gender, or express a view as to the origin of the disorder and its development. Likewise, they did not specify whether the first applicant suffered from mental-health problems and whether he had followed a course of psychotherapy, nor did they provide any information on his current state, having been written prior to his gender reassignment. The court added that patients who underwent surgery in France submitted a comprehensive file covering all the disciplines concerned as a precondition of reassignment surgery, something which the doctor who had operated on the first applicant in Thailand had apparently not required. In order to have their costs covered by the social-security scheme, patients in France had to undergo a whole series of rigorous examinations. The court found that, in the light of the evidence in the file, the applicant should submit willingly to the expert assessment. In accordance with Article 11 of the Code of Civil Procedure, which authorised the courts to draw all the appropriate inferences from a party’s refusal to cooperate with an investigative measure, the court found that, in the absence of a multi-disciplinary expert assessment, the first applicant’s request had not been sufficiently substantiated. 2.     Paris Court of Appeal judgment of 23 September 2010 22.     Following an appeal by the first applicant the Paris Court of Appeal, in a judgment of 23 September 2010, upheld the judgment of 10 November 2009 in so far as it had rejected the first applicant’s request for the indication of gender on his birth certificate to be corrected. 23.     First of all, the Court of Appeal inferred from Article 8 of the Convention that “where, following medical and surgical treatment undergone for therapeutic purposes”, a person with a gender identity disorder no longer possessed all the characteristics of his or her original sex and had taken on a physical appearance closer to that of the opposite sex, which matched his or her social behaviour, the principle of respect for private life warranted amending the civil-status records to indicate the sex corresponding to the person’s appearance. 24.     However, the Court of Appeal found that, in the light of the documents submitted by the first applicant, it was “not established that he no longer possesse[d] all the characteristics of the male sex”. It stressed in that regard that, although the psychiatrists Bo. and Ba. had given a diagnosis of gender identity disorder in their certificates of 12 April 2007 and 3 April 2008, they had not noted the “absence of mental-health problems”. The Court of Appeal further noted that the hormone treatment referred to in the certificates issued by Dr H. on 16 January and 10 September 2008 dated back a long time. It also found that the certificate drawn up by Dr S., the doctor who had operated on the first applicant in Thailand on 3 July 2008, was “extremely brief” and consisted merely in a list of items of medical information that did not make clear whether the gender reassignment surgery had been effective. Furthermore, the documentation produced by the first applicant concerning the clinic, which had been taken from the Internet, was not sufficient to establish either the scientific and surgical reputation of the surgeon who had performed the operation or whether the surgery had complied with standard medical practice. Nor was this demonstrated by Dr W.’s certificate of 26 May 2009, “owing to the lack of any detail”. 25.     The Court of Appeal went on to observe that the first applicant had refused persistently on principle to submit to an expert assessment and had not cooperated in the assessment ordered by the lower court, “on the irrelevant pretext of protection of his private life, even though the aim [had been] to establish that a person presenting with a gender identity disorder no longer possessed all the characteristics of the sex assigned at birth”. The court stressed that “the possible interference with private life [had been] proportionate to the requirement to establish the person’s gender identity, which [was] a component of civil status that [was] subject to the public ‑ order principle of inalienability”. 26.     The Court of Appeal found, however, that the fact that the first applicant was known by a female forename – as was clear from numerous statements from those close to him – allied to his conviction that he was female, the fact that he had had various medical treatments and operations, and the “reality of his social life”, meant that he had a legitimate interest in changing his male forenames to female ones. The court therefore ordered that his forenames be corrected on his birth certificate. 3.     Judgment of the First Civil Division of the Court of Cassation of 7   June 2012 (a)     Grounds of appeal 27.     The first applicant appealed on points of law against the judgment of 23 September 2010. 28.     He argued, firstly, that the right to respect for private life meant that gender reassignment should be authorised for persons whose physical appearance was closer to that of the opposite gender, to which their social behaviour corresponded. He criticised the Court of Appeal’s refusal of his request to have the indication of his gender amended because he had refused to cooperate in an expert assessment aimed at determining the origins of his gender identity disorder and its development, and at ascertaining that he no longer had all the characteristics of the male sex. In his view, in ruling in this way after noting that he was known by a female forename, that he was convinced that he belonged to the female sex, and that he had had various medical and surgical treatments and lived in society as a woman, the Court of Appeal had breached Article 8 of the Convention. The first applicant referred, in particular, to the position of the Commissioner for Human Rights of the Council of Europe as set out in his issue paper of October 2009 entitled “Human rights and gender identity”, and to Resolution 1728 (2010) of the Parliamentary Assembly of the Council of Europe on discrimination on the basis of sexual orientation and gender identity (see paragraphs 73 and 75 below). 29.     Secondly, he argued that it had been fully established by the medical certificates he had submitted that he was transgender, that he had undergone surgery which made him a woman, and that his physical appearance and social behaviour were female. In ruling that these documents were insufficient to establish the existence of the conditions required for gender reassignment, and criticising him for not cooperating with the expert assessment, the Court of Appeal had therefore distorted the evidence. 30.     Thirdly, he alleged a violation of Article 14 of the Convention taken in conjunction with Article 8, taking the view that the Court of Appeal, in finding that he should have submitted to the expert assessment and in dismissing his appeal, had based its assessment on discriminatory grounds. (b)     The judgment 31.     On 7 June 2012 the Court of Cassation (First Civil Division, Bulletin 2012, I, no. 123) dismissed the appeal in the following terms: “... In order to substantiate a request to have the gender markers on a birth certificate corrected, the person concerned must demonstrate, in view of the widely accepted position within the scientific community, that he or she actually suffers from the gender identity disorder in question and that the change in his or her appearance is irreversible. After examining the documents submitted, without distorting them, and having noted, firstly, that the certificate describing surgery performed in Thailand was very brief (being confined to a list of items of medical information and saying nothing about the effectiveness of the operation) and, secondly, that [the first applicant] refused in principle to undergo the expert assessment ordered by the first-instance court, the Court of Appeal was entitled to refuse the application for correction of the gender markers on the appellant’s birth certificate ...” B.     Application no. 52471/12 32.     The second applicant was born in 1958 and lives in Le Perreux ‑ Sur ‑ Marne. 33.     He submitted that, although he had been entered in the register of births as male, he had been aware from a very young age of belonging to the female gender. 34.     Owing to social pressure he had tried to hide his true nature and had married twice while living with the male identity entered on his birth certificate. However the marriages, from which he had children, had ended in divorce. 35.     He dressed as a woman and was perceived by others as a woman. Since 2004 he had been undergoing treatment with feminising hormones and had undergone genital reconstruction surgery. 1.     Judgment of the Créteil tribunal de grande instance of 9 February 2010 36.     On 17 March 2009 the second applicant brought proceedings against State Counsel in the Créteil tribunal de grande instance seeking an order for his birth certificate to be corrected by replacing the word “male” with “female” and replacing his male forenames with the name “Émilie”. He referred in particular to a certificate issued in 2004 by Dr B., a psychiatrist and specialist in transgender issues, stating that the second applicant was a transgender person. 37.     The court gave judgment on 9 February 2010. It noted that the second applicant had merely filed a few invoices dated 2008 and issued in the name of “Émilie” Garçon, four statements made by witnesses in 2008 saying that they had known the second applicant for a number of years, knew that he was a “transgender” person (or “transsexual”, as one of them put it) and had seen him “evolve as a woman without any apparent difficulty”, and a certificate dated 23 April 2009 signed by the endocrinologist Dr T., according to which the second applicant had been receiving treatment for gender dysphoria since 2006 and taking feminising hormones since 2004, a treatment that was well tolerated and effective. Noting also that the second applicant had not submitted the certificate from Dr B., the court found that he had not “[demonstrated] that he was actually transgender as claimed”. As he had not demonstrated that he actually suffered from the alleged disorder, his request had to be refused, since a change to the indication of gender in civil-status documents “was possible only in order to make a proven de facto situation official”. The court held that it had to refuse the request for a change of forename on the same grounds, as that request was merely secondary to the request for a change in civil status. 2.     Judgment of the Paris Court of Appeal of 27 January 2011 38.     On 27 January 2011, following an appeal by the second applicant, the Paris Court of Appeal upheld the judgment of 9 February 2010 giving the following reasons: “... While the principle of the inalienability of civil status precludes the law from recognising a change wilfully sought by an individual, it does not imply that civil status cannot be changed. Where a genuine gender identity disorder that is medically recognised and untreatable has been diagnosed following a rigorous assessment, and the transgender person has undergone irreversible physical changes for therapeutic purposes, it is appropriate to consider that, although the person’s new gender status is imperfect in that the chromosomal make-up is unchanged, he or she is closer, in terms of physical appearance, mindset and social integration, to the preferred gender than to the gender assigned at birth. In these circumstances, and since under Article 57 of the Civil Code the birth certificate must mention the sex of the individual concerned, the principle of change should be accepted. In the present case Émile Maurice Jean Marc Garçon ... was entered in the civil ‑ status registers as male. It is up to the appellant to give reasons, in particular on the basis of medical evidence, why he should be regarded as female as he requests. The appellant claims to be a transgender person who has lived with a female gender identity for several years. He argues that the disparity between his preferred gender and the gender assigned to him at birth is sufficient to warrant a change in civil status without his first having to demonstrate that he has undergone gender reassignment surgery. Regarding the medical aspect he has simply submitted, as he did before the first ‑ instance court, a certificate issued by Dr [T.] dated 23 April 2009, written on the headed paper of Dr [D. S.-B.], in which that doctor ‘certifies that the endocrinologist Dr [S.-B.] has been treating Mr Émile (Émilie) Garçon for gender dysphoria ... since 2006’, and specifies that the appellant has been receiving treatment with feminising hormones since 2004 and that the treatment is well tolerated and effective. This medical certificate stating that the appellant followed a course of feminising hormone treatment from 2004 to 2009 does not in itself demonstrate the existence of a permanent physical or physiological change and hence the irreversible nature of the gender reassignment process. An expert assessment appears pointless since the appellant, who rejects the idea of having to undergo genital surgery, does not mention any plastic surgery performed in connection with the current course of hormone treatment, and has not produced any opinion by a psychiatrist capable of demonstrating the existence and persistence of the alleged disorder, although Émile Garçon’s birth certificate states that he has been married twice ... and divorced twice ...” 3.     Judgment of the first Civil Division of the Court of Cassation of 13   February 2013 (a)     Grounds of appeal 39.     The second applicant appealed on points of law against the judgment of 27 January 2011. He argued in particular that, in refusing his requests on the pretext that he had not demonstrated either the existence of “permanent physical or physiological change and hence the irreversible nature of the gender reassignment process”, or “the existence and persistence of the alleged disorder”, the Court of Appeal had breached Article 8 of the Convention, since the right to respect for private life implied the right for individuals to define their sexual identity and to have their civil-status documents amended to reflect their preferred gender identity, without having to demonstrate the existence of a gender identity disorder or gender dysphoria, or to undergo a prior process of irreversible gender reassignment. Making the right to amendment of civil-status documents subject to proof of having undergone an irreversible process of gender reassignment amounted to requiring the holders of that right to be sterilised in order to exercise it, thereby interfering with their dignity and with due respect for their bodies and the intimacy of their private lives. The second applicant inferred from this that there had been a violation of Article 8 on account of the fact that the Court of Appeal had required him to furnish proof of having undergone that process. He added that it was discriminatory and contrary to Article 14 of the Convention to make this right subject to such proof and to proof of a gender identity disorder or gender dysphoria. (b)     Judgment of 13 February 2013 40.     On 13 February 2013 the Court of Cassation (First Civil Division) dismissed the appeal on points of law in the following terms: “... In order to substantiate a request for correction of the gender markers on a birth certificate, the person concerned must demonstrate, in view of the widely accepted position within the scientific community, that he or she actually suffers from the gender identity disorder in question and that the change in his or her appearance is irreversible. Furthermore, after noting that [the second applicant] had merely produced a certificate issued by a doctor on 23 April 2009 on the headed paper of a different doctor, in which the former certified that the latter, an endocrinologist, was treating [the second applicant] for gender dysphoria, and which stated that the patient had been receiving treatment with feminising hormones since 2004, the Court of Appeal found that this medical certificate alone did not demonstrate the existence or persistence of a gender identity disorder, or the irreversible nature of the gender reassignment process. These are not discriminatory conditions nor do they infringe the principles set out in Articles 8 and 14 of the European Convention on Human Rights or Articles 16 and 16-1 of the Civil Code, as they are based on a fair balance between the requirements of legal certainty and the inalienability of civil status on the one hand, and the protection of private life and respect for the human body on the other ...” C.     Application no. 52471/12 41.     The third applicant was born in 1952 and lives in Essey-les-Nancy. 42.     He submitted that, although he had been entered in the register of births as male, he had been aware from a very young age of belonging to the female gender. He had lived with a woman from 1975 to 1991 and they had had a child together in 1978. 43.     The third applicant said that he had hidden his true nature for a long time as he had been afraid of being bullied and later of losing custody of his daughter. Once his daughter was grown up he had adapted his appearance and social conduct to match his female gender identity. While most of the documents he used in everyday life reflected his gender identity, this was not the case of his civil-status documents, passport, driving licence, vehicle registration papers or entry in the national identity register. As a result, he was constantly obliged to refer to his transgender identity, to the detriment of his private life. 1.     Judgments of the Nancy tribunal de grande instance of 7   November 2008 and 13 March 2009 44.     On 13 June 2007 the third applicant brought proceedings against State Counsel in the Nancy tribunal de grande instance seeking an order for his birth certificate to be corrected by replacing the word “male” with “female” and for his forenames to be replaced by the name “Stéphanie”. (a)     Judgment of 7 November 2008 45.     The Nancy tribunal de grande instance delivered an initial judgment on 7   November 2008. It pointed out that it was “now unanimously recognised by both domestic and European case-law that transgender persons [had] the right to respect for their private life” and were therefore entitled to have their gender and forenames amended on their civil-status documents. However, the court stressed that a number of conditions had to be met, stating as follows:   “[T]he gender identity disorder [must] be established not only medically (usually by a multi-disciplinary team of doctors, surgeons, an endocrinologist, a psychologist and a psychiatrist), but also judicially, either by means of an expert assessment (although the court is not required to order one) or on the basis of medical certificates produced by the person concerned establishing with certainty that he or she has undergone medical treatment and surgery in order to achieve gender reassignment.” The court went on to find as follows: “Persons wishing to have their gender changed in their civil-status documents must demonstrate that they have undergone medical and surgical treatment for therapeutic purposes and have had previous surgery to remove the external characteristics of their original sex. Hence, only ‘genuine’ transgender persons can have the gender markers in their civil-status documents changed, that is to say, persons who have already undergone an irreversible gender reassignment process. In other words, a court may order individuals’ civil-status documents to be amended to reflect their preferred new gender only after they have genuinely altered their sexual anatomy to make it conform as closely as possible to their preferred gender. These medical and surgical conditions are explained by the fact that a genuine gender identity disorder, which is characterised by ‘a deeply held and unshakeable feeling of belonging to the opposite gender to one’s genetically, anatomically and legally assigned gender, accompanied by an intense and consistent need to change one’s gender and civil status’, must be distinguished from other related but different concepts such as transvestism, which is based solely on reversible outward appearance and does not entail a change of anatomical sex. In the present case, although S. Nicot is female in appearance and has provided documents and invoices issued to him by certain bodies in the name of Ms Stéphanie Nicot, these factors do not enable the court to assess whether he has actually changed gender. At the hearing, when questioned by the President regarding any treatment he may have undergone, S. Nicot took a militant stance – as he is perfectly entitled to do – and invoked the confidential nature of his private life ...” 46.     The court therefore stayed the proceedings concerning the third applicant’s requests and ordered him to “produce in the proceedings any medical documents relating to the medical and surgical treatment undergone and capable of demonstrating that he [had] actually changed gender”. (b)     Judgment of 13 March 2009 47.     The third applicant refused to produce any medical documents, taking the view that he had demonstrated sufficiently that he was physically and psychologically female and was integrated socially as a woman. He simply stated that his general practitioner had prescribed hormone treatment for him which meant that he had female secondary sexual characteristics such as breasts. State Counsel concluded that it was not possible to amend his civil status without proof of gender reassignment surgery. 48.     In a judgment of 13 March 2009 the Nancy tribunal de grande instance noted that the third applicant had not produced medical and surgical evidence of gender reassignment, and therefore rejected his request. The judgment reiterated the reasoning of the judgment of 7 November 2008. The court stated as follows: “[A change of gender in civil-status documents may be granted only to] ‘genuine’ transgender persons, that is, to persons who have already undergone irreversible gender reassignment, and not to persons who merely claim to be ‘transgender’ on the grounds that they are regarded socially as belonging to the gender corresponding to their outward appearance, but who oppose any gender reassignment surgery or refuse to provide medical and surgical evidence of such reassignment having been carried out by means of medical treatment and surgery.”   The court went on to find as follows: “Granting S. Nicot’s request would effectively amount to the creation by the courts of a ‘third gender’, namely persons of female appearance who nevertheless continue to have a male external sexual anatomy but can marry a man. In the opposite case, a person who is male in appearance would continue to have female genitalia and could thus give birth to a child!!! As the case-law currently stands, such a situation is wholly prohibited.” 2.     Judgment of the Nancy Court of Appeal of 3 January 2011 49.     In a judgment of 3 January 2011 the Nancy Court of Appeal upheld the judgment of 13 March 2009. It stressed in particular that “the request for a change in civil status [did] not necessarily require proof of surgical change such as the removal or alteration of the genitalia, or plastic surgery”, but implied that “the irreversible nature of the gender reassignment process be established in advance”. The court went on to find that the third applicant “[had] not provided such intrinsic proof, which [could] on no account derive from the fact that he [was] regarded by others as female”. It added that respect for private life could not result in the third applicant being exempted from this “obligation to provide proof, which [was] not designed to confuse transgenderism and transsexualism but which, besides the inalienability of civil status, [was] aimed at ensuring the consistency and reliability of civil-status records”. That requirement, which was legitimate and in no way discriminatory, was not in breach of Article 14 of the Convention, and it was not the court’s task to remedy the deficiencies in the evidence adduced by the third applicant. 3.     Court of Cassation judgment of 13 February 2013 (a)     Grounds of appeal 50.     The third applicant lodged an appeal on points of law against the judgment of 3 January 2011. He argued that the right to respect for private life entailed the right to define one’s gender identity and to have civil-status documents amended to reflect one’s preferred gender, without a prior obligation to undergo an irreversible gender reassignment process and provide proof thereof. In finding that he should have furnished proof of this irreversible process, the Court of Appeal had therefore breached Article 8 of the Convention, especially since neither the principle of the inalienability of civil status nor the need for consistency and reliability of civil-status records made it necessary for individuals to undergo an irreversible process of gender reassignment, and provide proof thereof, in order to have their civil ‑ status documents amended. The third applicant added that it was discriminatory and contrary to Article 14 of the Convention to make individuals’ right to have their civil-status documents amended to reflect their preferred gender conditional upon proof that they had undergone irreversible gender reassignment. (b)     Judgment of 13 February 2013 51.     The third applicant’s appeal was examined at the same time as the second applicant’s. 52.     On 13 February 2013 the Court of Cassation (First Civil Division) dismissed the appeal on the following grounds: “... In order to substantiate a request for correction of the gender markers on a birth certificate, the person concerned must demonstrate, in view of the widely accepted position within the scientific community, that he or she actually suffers from the gender identity disorder in question and that the change in his or her appearance is irreversible. Given that [the third applicant] has not furnished intrinsic evidence of the irreversible nature of the gender reassignment process in his case, which cannot derive from the sole fact that he is seen by others as female, the dismissal of his claims by the Court of Appeal did not infringe the principles laid down under Articles 8 and 14 of the Convention ..., but rather struck a fair balance between the requirements of legal certainty and the inalienability of civil status on the one hand, and the protection of private life on the other ...” II.     REPORT BY THE HIGH AUTHORITY FOR HEALTH 53.     In November 2009 the High Authority for Health published a report entitled “Medical treatment of gender identity disorders in France – situation and outlook”. 54.     Among other things, the report advocated a “care pathway” involving several stages. The first consisted in diagnosing and assessing the “gender identity disorder”; the aim was to “avoid, as far as possible, unwarranted irreversible changes”. The second stage consisted in “real-life experience”, the aim being to study the individual’s capacity to live in the desired role. The person lived full-time in the desired gender role in his or her daily life and social and professional activities, and demonstrated his or her social integration in that role, chose a new forename and informed family members of the intended change. The third stage consisted in hormone substitution, whereby exogenous hormones were administered “in order to eliminate the secondary sexual characteristics of the sex of origin and replace them as fully as possible with those of the opposite sex”. The fourth stage consisted in reassignment surgery. The report specified in that regard that, although most transgender persons wished to have reassignment surgery, it was contraindicated for some patients on medical grounds, while others felt that this step was not necessary in their case and that, for instance, hormone substitution, “peripheral” surgery and speech therapy were sufficient to give them the appearance of belonging to the other gender and allowing them to be recognised as such by society. The report further observed that a reluctance to undergo surgery might also be due to the considerable technical difficulties and the secondary effects linked to the operations. III.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Code of Civil Procedure 55.     The relevant provisions of the Code of Civil Procedure read as follows: Article 11 “The parties must cooperate in the investigative measures. The judge may draw all the appropriate inferences from a failure or refusal to do so. ...” Article 143 “The facts on which the outcome of the dispute depends may, at the parties’ request or of the judge’s own motion, be the subject of any legally admissible investigative measure.” Article 144 “Investigative measures may be ordered in any event where the judge does not have sufficient information to determine the case.” Article 147 “The judge must confine the choice of measures to what is sufficient in order to resolve the dispute, focusing on choosing the simplest and least costly option.” Article 232 “The judge may seek clarifications from any person of his or her choosing, in the form of observations, a consultation or an expert assessment on a factual issue which requires technical knowledge.” Article 263 “An expert assessment should be ordered only in cases where observations or a consultation would not provide the judge with sufficient clarification.” B.     Case-law of the Court of Cassation 56.     In two judgments of 11 December 1992 (nos. 91-11900 and 91 ‑ 12373; Bulletin 1992 AP no. 13), the Court of Cassation, sitting as a full court, held as follows:   “Where a person with a gender identity disorder no longer possesses all the characteristics of his or her original sex and has taken on a physical appearance closer to that of the opposite sex, which matches his or her social behaviour, the principle of respect for private life warrants amending the civil-status records to indicate the sex corresponding to the person’s appearance.” The Court of Cassation stressed that “the principle of the inalienability of civil status [did] not preclude such amendment”. It therefore quashed the contested judgments, which had dismissed requests from transgender persons to have the gender markers on their birth certificates corrected. 57.     In the second of these cases the appellant had unsuccessfully requested the appellate court to order an expert medical assessment in order to demonstrate the feminisation process he had undergone and establish that he was transgender. The Court of Cassation noted that, while the fact that the appellant was female was attested to by a certificate from the surgeon who had performed the operation and the unofficial opinion of a doctor consulted by the appellant, the actual existence or otherwise of a gender identity disorder could be established only by means of an expert assessment. It therefore criticised the impugned judgment for refusing the request. 58.     The Court of Cassation, sitting in plenary, thus established in 1992 five conditions for amending the indication of gender on a person’s birth certificate. The person concerned had to (1) have a gender identity disorder, (2) have undergone medical and surgical treatment with a therapeutic purpose, (3) no longer have all the characteristics of the sex assigned