CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 31 janvier 2023

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display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s1721E4C5 { margin-top:14pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   FIFTH SECTION CASE OF Y v.   FRANCE (Application no.   76888/17)     JUDGMENT   Art   8 •   Positive obligations •   Refusal by national authorities to insert sex marker “neutral” or “intersex” instead of “male” on birth certificate of intersex individual •   Discordance between applicant’s biological and legal identities a source of suffering and anxiety •   No European consensus •   Widened margin of appreciation •   Importance of public-interest considerations •   Choice of society left to discretion of respondent State, which must determine at what speed and to what extent to meet intersex people’s civil-status demands, given their difficult situation   STRASBOURG 31   January 2023   FINAL   26/06/2023   This judgment has become final under Article   44 §   2 of the Convention. It may be subject to editorial revision.   In the case of Y v.   France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President ,   Arnfinn Bårdsen,   Mārtiņš Mits,   Stéphanie Mourou-Vikström,   Lado Chanturia,   Mattias Guyomar,   Kateřina Šimáčková, judges , and Victor Soloveytchik, Section Registrar , Having regard to: the application (no.   76888/17) 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 a French national (“the applicant”; since the applicant used masculine pronouns in his application and observations, the Court will do the same), on 31   October 2017; the decision to give notice to the French Government (“the Government”) of the application; the decision not to have the applicant’s name disclosed; the observations submitted by the Government and the observations in reply submitted by the applicant; the comments submitted by the International Federation for Human Rights (FIDH), the Ligue des Droits de l’Homme (“the LDH”) and Alter Corpus, jointly; Organisation Intersex International Europe (OII Europe), the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and Collectif Intersexes et Allié.e.s (CIA), jointly; the Human Rights Centre of Ghent University and the Equality Law Clinic of the Université Libre de Bruxelles, jointly; and Chrétiens Carrefour Inclusif and the Saint-Guillaume Parish of Strasbourg, jointly, all of which were granted leave to intervene by the President of the Section; Having deliberated in private on 14   June, 11   October and 13   December 2022, Delivers the following judgment, which was adopted on the last-mentioned date: INTRODUCTION 1.     The case concerns the refusal to grant an intersex individual’s request to have the sex marker “neutral” or “intersex” inserted on his birth certificate instead of “male”. The applicant complained of a violation of his right to respect for his private life under Article   8 of the Convention. THE FACTS 2.     The applicant was born in 1951 and lives in Strasbourg. He was represented by Ms   M.   Petkova, a lawyer. 3.     The Government were represented by their Agent, Mr   F.   Alabrune, Director of Legal Affairs at the Ministry of European and Foreign Affairs. 4 .     The applicant, whose birth certificate indicates that he is “male”, states that he is an intersex individual. He notes that intersex is a term used to refer to people who have variations in their primary and secondary sex characteristics and who therefore cannot be categorised as either “male” or “female”. 5 .     The applicant states that in his case, as with other intersex people, the sexual differentiation process did not occur in   utero and that, at birth, it was impossible to determine whether he was a boy or a girl. He has neither testicles nor ovaries, meaning that his body has never produced sex hormones (testosterone or oestrogen) and has not developed either male or female characteristics, and he did not go through puberty when he reached adolescence. When he was 21   years old, his physical appearance was “undeniably female”, with a feminine gait, smooth skin, an indeterminate voice (or in any event not a deep one) and no hair on his arms or legs, and in the street he was perceived to be a girl even though he had been declared a boy at birth. He further states that, like other intersex people, he suffers from osteoporosis and that, because he had been “administratively assigned” the male sex, at the age of 40 he was prescribed a testosterone-based treatment for men, which artificially changed his appearance: he retained his feminine looks and slim figure and his external genitalia remained equally ambiguous, but he grew a beard and his voice broke. He submits that that forced change amounted and still amounts to both a violation of his bodily integrity and a genuine intrusion into his privacy and his gender identity, which he “experienced as a trauma, an inner rape”. 6 .     The applicant submitted medical certificates showing that his biological intersex status had been established shortly after his birth and had not changed when, at the age of 63, he instituted proceedings at domestic level as described below. In particular, his submissions included medical certificates drawn up by Dr   R., Professor   Ro. and Dr   V., an endocrinologist, on 26   June 1970, 11   July 1973 and 22   April 2014 respectively, which were referred to by the President of the Tours tribunal de grande instance (see paragraph   14 below). 7.     The first certificate attests to the fact that the applicant has a total lack of genitalia, whether male or female, and that many exploratory medical and surgical procedures have found that he has no gonads. 8.     The certificate issued by Professor   Ro. on 11   July 1973 contains the following information: “[The applicant] presents with a problem of an intersex formation of the external genitalia, which comprise a small genital tubercle and an opening of the urogenital sinus. [The applicant] was registered as a boy and was raised as such. He does not display any male secondary sex characteristics and his mammary glands have not developed. Our observations concerning sex development are as follows: (1)   the karyotype is male XY; it cannot, however, be ruled out that repeated or in-depth testing may reveal the existence of mosaicism; (2)   the nature or the presence of gonads has not been established with certainty; we have not been provided with the details and results of the surgical intervention performed during childhood, which apparently found an absence of gonads. We have nothing in writing to confirm that information. However, the lack of secondary sex characteristics of either sex, the high urinary gonadotropin level above 50   SU and the relatively low level of urinary steroid hormone excretion suggest that the gonads are either anatomically absent or not functional, regardless of the direction of their development. A gonadotropin stimulation test was started, but [the applicant] did not consent to continuing it through to the end; (3)   intersexuality is clear at the level of the external genitalia, and the urethrography established the existence of a rudimentary vagina and the possibility of a vaginoplasty, as confirmed by our surgeons; surgery to create male genitalia would be impossible; (4)   lastly, the psychological testing performed by Dr   [Ri.] seems to indicate more of a feminine leaning in terms of sexual attraction; however, [Dr   Ri.] believes that psychological tests twice a month over a six- to eight-month period would be needed to provide a clear answer on this topic   ...” 9 .     The certificate issued by Dr   V. on 22   April 2014 reads: “I, the undersigned Dr   [V.], certify that I have been treating [the applicant] since 2002. This patient was born with ambiguous sex characteristics, has a male XY karyotype and has hypogonadism with pubertal failure owing to gonadal agenesis (exploratory surgery during childhood found no gonads). He was treated with Androtardyl* for a few months when he was 22, then stopped taking this medication, before starting again at the age of 44. The present examination shows the existence of a micropenis, hypospadias, full fusion of the pigmented labioscrotal folds and no palpable gonads. This patient has had osteoporosis since 2002, which has been treated with Cacit   D*, Fosamax*, one tablet per week. The hypogonadism is treated with Androtardyl, one vial per month.” 10.     In addition to being “biologically intersex”, the applicant reported being “psychologically intersex” and “socially intersex”. First, he stated that, in spite of the male sex marker on his birth certificate, he had maintained an intersex gender identity, as neither male nor female, and that he had never thought of himself as being anything other than intersex. He produced copies of letters sent to his doctor in 1973, in which he had already expressed that feeling. Second, he submitted that “to other people [he could] not be reduced to his administratively assigned status as a man” and provided statements to the effect that he was recognised socially as intersex. 11 .     The applicant produced copies of statements that he had submitted as part of the domestic proceedings, including one from his psychotherapist dated 20   May 2014, the relevant parts of which read: “... I have difficulty characterising the identity of my patient. Should I write Mr, Ms or...? [Y] has no legal identity. He has always been forced to hide his physiological reality from the other members of the community and to live sheltered behind a borrowed identity. To others, he is Mr   [Y]. He himself suffers from ‘having to pretend to be a man’. While medicine, in the form of hormone treatment, and psychotherapy, which offers him a chance to speak about his situation, have undoubtedly brought him worthwhile and necessary support, it is scant relief given the extent of his suffering. ... [I]n antiquity, the worst punishment was not death, but exile, exclusion from the human community to which one belonged. While, admittedly, [the applicant] is not the only person in his situation, his community does not have the right to legally exist in France. For this reason, [the applicant] has always lived with the unspeakable suffering of being excluded, of never belonging in our society as what he is, a third gender. I have been accompanying him through the psychotherapy process for several years now. He has made admirable progress in building his own identity, to the point of seeking recognition of his gender. He has drawn on his courage, his clear-sightedness and his demanding nature to cope increasingly well with this unbearable situation of not being able to say simply who he is. For him and for all other people experiencing the same situation, the same tragedy, recognition of his identity would represent substantial redress for his identity trauma and the right to exist legally at long last.” 12.     The applicant is married. He and his wife have an adopted child. JUDGMENT OF 20   AUGUST 2015 13.     On 12   January 2015 the applicant applied to the public prosecutor at the Tours tribunal de grande instance to request that the President of that court have the “male” sex marker on his birth certificate replaced by “neutral” or, failing that, “intersex”. 14 .     The President of the Tours tribunal de grande instance found for the applicant in a judgment of 20   August 2015, providing the following main reasons: “... The facts Although (i)   [the applicant’s] birth certificate contains a male sex marker; (ii)   it has been established that he was raised as male by his parents and broader family; and (iii)   according to the medical documents produced, [the applicant] has a male XY karyotype, the evidence adduced during the proceedings shows that [the applicant] ‘was born with ambiguous sex characteristics’, in the words of the medical certificate drawn up by Dr   [V.] on 22   April 2014. That certificate further states that [the applicant] has ‘hypogonadism with pubertal failure’, that is, an absence of reproductive functions and more specifically of testicles or ovaries (absence of gonads) and an absence of sex development. In adulthood, his genitalia have retained female aspects (‘rudimentary vagina’ mentioned by [Professor   Ro.]) and male aspects alike (‘micropenis’ according to Dr   [V.]). He has never produced sex hormones, whether male (testosterone) or female (oestrogen). Professor   [Ro.] refers to an ‘intersex formation’ and to ‘clear intersexuality at the level of the external genitalia’. From a psychological point of view, [the applicant] refers to the impossibility of defining himself sexually and claims to have an intersex identity. [A description of the testimony of the applicant’s brother, one of his friends, his therapist and his wife follows.] It must therefore be noted that neither [the applicant’s] doctors nor his family, nor [the applicant] himself for that matter, can assert that the male sex indicated at his birth by the registrar corresponds to any reality whatsoever   – any more than the female sex would have, moreover   – or that either sex corresponds to his true identity, which must take precedence over any other definition, in particular one based on chromosomes. All the evidence in the present case shows (without there being any need for an expert’s opinion, since the question appears now to be one of law rather than of medicine, where the uncertainty about [the applicant’s] situation has been made sufficiently clear) that it is impossible to define [the applicant’s] sex from a genital, hormonal or, above all, psychological point of view, whereas all the case-law, particularly in the area of transsexualism, has given this aspect of gender identity priority over all others. The law Article   57 of the Civil Code ... provides that ‘the birth certificate shall state the date, time and place of birth [and] the sex of the child’. The sole purpose of that provision is to have registrars collect the information they need to perform their duties, on the basis of a simple declaration. Such information is valid until evidence to the contrary is provided to the president of the tribunal de grande instance , who may order its rectification under Article   99 of the Civil Code. The president has jurisdiction in matters including mistakes concerning the sex of children. As regards the sex marker more specifically, the implementation of Article   57 of the Civil Code by registrars necessarily presupposes that the child’s sex can be determined. This is not always the case, as expressly recognised in paragraph   55 of the circular of 28   October 2011 on special rules for various civil-status documents, which reproduces the provisions of the general instruction on civil status published in the Official Gazette of 28   July 1999, since that circular allows a child’s sex not to be indicated at all on the birth certificate ‘where, in certain exceptional cases, the doctor considers that no immediate indication of the newborn’s probable sex can be given’. Surprisingly, the circular further makes this exception conditional on the assumption that ‘the sex can be determined definitively within one or two years, following appropriate treatment’, without mentioning the possibility that the sex of the person concerned might never be able to be determined, which is precisely the case for [the applicant]. This situation can therefore be described as a legal vacuum, and there is nothing in domestic law to prevent his request from being granted. The sex assigned [to the applicant] at birth would appear to be purely fictitious and to have been imposed on him throughout his entire life without his ever having been able to express his innermost feelings. This contravenes the provisions of Article   8 §   1 of [the Convention], which takes precedence over any other provision of domestic law and which provides that ‘[e]veryone has the right to respect for his private ... life’. In this connection, [the Court] reiterated in a recent judgment of 10   March 2015 that it had ‘previously stressed on numerous occasions that the concept of “private life” is a broad term not susceptible to exhaustive definition. It includes not only a person’s physical and psychological integrity, but can sometimes also embrace aspects of an individual’s physical and social identity. Elements such as gender identification ... fall within the personal sphere protected by Article   8 of [the Convention] The Court considers that the notion of personal autonomy is an important principle underlying the interpretation of the Article   8 guarantees’ [ see Y.Y. v.   Turkey , no.   14793/08, §§   56-57, ECHR   2015 (extracts)]. Furthermore, [the applicant’s] request does not face any legal obstacles on the grounds of public policy, since the known rarity of his situation does not call into question the age-old concept of the sex binary, and the court is in no way seeking to have the existence of any ‘third sex’ recognised   – which would be beyond its jurisdiction   – but merely to acknowledge the impossibility of assigning a particular sex to [the applicant] in the present case and to find that the sex marker on his birth certificate is simply incorrect. For this reason, the ‘male’ sex marker on his birth certificate should be replaced by ‘neutral’, which may be defined as not belonging to either the male or the female gender. This marker is preferable to ‘intersex’, which would result in a categorisation that it would be preferable to avoid (since the aim is not to recognise a new gender) and that would appear more stigmatising ...” JUDGMENT of the ORLÉANS COURT OF APPEAL OF 22   MARCH 2016 15 .     In a judgment of 22   March 2016, the Orléans Court of Appeal, ruling on an appeal by the Principal Public Prosecutor at the Tours tribunal de grande instance , set aside the judgment of 20   August 2015, providing the following reasons: “... Article   57 of the Civil Code provides that the birth certificate must state ... the sex of the child ... The medical documents produced by [the applicant] as part of the proceedings show that during foetal development sexual differentiation, which usually starts in the eighth week, failed   ... with the result that from birth he displayed atypical development of chromosomal, gonadal and anatomical sex and that the markers of sexual differentiation were not all clearly male or female. In the absence of sex hormone production ..., no male or female secondary sex characteristics ever appeared, since the embryonic genital tubercle never developed in one direction or the other, so that while [the applicant] has an XY, or male, karyotype   ..., he indisputably was and still is sexually ambiguous   ... [The applicant] was recorded as male in the register of births, marriages and deaths. While the principle of the inalienability of civil status entails that the components of civil status are imposed on individuals, the principle of respect for private life speaks in favour of allowing exceptions. This must be the case where a person, such as [the applicant], displays a variation in sex development. In such situations, genetic make-up (genotype) does not match physical appearance (phenotype), which in turn does not always clearly align with the female or male sex. Accordingly, assigning such individuals at birth to one of the two sex categories, in contradiction with medical findings which do not enable sex to be determined unequivocally, exposes them to the risk of a conflict between their assigned sex and their gender identity as experienced in adulthood. In view of the margin of appreciation afforded to the national authorities in the implementation of their obligations under Article   8 of [the Convention], a fair balance must be struck between the protection of civil status, which is a matter of public policy, and respect for the private life of individuals with a variation in sex development. That fair balance entails that such individuals should be allowed either to have their civil status indicate no sex category or to have the sex assigned to them changed, where it does not correspond to their physical appearance and their social behaviour. In the present case [the applicant’s] physical appearance is that of a male; he married in 1993 and he and his wife have adopted a child. He has requested that the ‘male’ sex marker be replaced by ‘neutral’ or ‘intersex’. This request, which is in contradiction with his physical appearance and his social behaviour, cannot be granted. Moreover, as laws and regulations currently stand, no provision is made for the permanent entry on civil-status documents of any sex marker other than that of male or female, even in the event of sexual ambiguity. Granting [the applicant’s] request would be tantamount to recognising the existence of another sex category under the guise of a mere rectification of civil status, which would exceed the ordinary courts’ power to interpret legal rules and which is a matter for the legislature’s assessment alone. Such recognition constitutes a social issue that raises sensitive biological, moral and ethical questions, whereas individuals with variations in sex development need to be protected from stigmatisation while minors, including stigmatisation that could result from their being assigned to a new category ...” Judgment of the COURT OF CASSATION OF 4   MAY 2017 16 .     In a judgment of 4   May 2017, the Court of Cassation dismissed an appeal on points of law by the applicant, giving the following reasons: “... French law does not permit a sex marker other than male or female to appear on civil-status documents. While gender identity falls within the sphere protected by Article   8 of [the Convention], the binary nature of sex markers on civil-status documents pursues a legitimate aim, in that it is necessary for, and a cornerstone of, the social and legal arrangements in place. Recognition by the courts of a ‘neutral’ sex would have far-reaching consequences for the rules of French law, which are constructed on the basis of the sex binary, and would entail multiple coordinating legislative amendments. The Court of Appeal noted that [the applicant] was regarded by others as having the appearance and social behaviour of a male individual, in line with the sex marker on his birth certificate. It was thus able to conclude, without being obliged to go into the finer details of his arguments, that the interference with his right to respect for his private life was not disproportionate to the legitimate aim pursued ...” RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE 17.     At the relevant time Articles   57 and 99 of the Civil Code provided: Article   57 “The birth certificate shall state the date, time and place of birth, the sex of the child, the forenames given and the surname, followed where appropriate by a reference to the joint declaration by the parents as to the choice thereof, along with the forenames, surnames, ages, occupations and addresses of the father and mother and, if applicable, those of the person registering the birth ...” Article   99 “Rectification of civil-status documents shall be ordered by the president of the court. Rectification of declaratory or supplementary judgments relating to civil-status documents shall be ordered by the court. An application for rectification may be brought by any person concerned or by the public prosecutor; the latter shall be obliged to act of his or her own motion where the error or omission relates to an essential indication in the document or in the decision taking its place. The public prosecutor having local jurisdiction may carry out administrative rectification of purely clerical errors and omissions in civil-status documents; for this purpose he or she shall give the relevant instructions directly to those having custody of the registers.” 18 .     Law no.   2021-1017 of 2   August 2021 on bioethics inserted the following paragraph after the first paragraph of Article   57 of the Civil Code: “Where it has been medically certified that the child’s sex is impossible to determine on the date on which the [birth] certificate is drawn up, the public prosecutor may authorise the registrar not to indicate the sex immediately on the birth certificate. The medically certified sex shall be added at the request of the child’s legal representatives or the public prosecutor within a period which may not exceed three months from the date of the declaration of birth. The public prosecutor shall order that the sex be indicated in the margin of the birth certificate and, at the legal representatives’ request, that one or more of the child’s forenames be rectified.” 19.     The same Law inserted the following paragraph after the first paragraph of Article   99 of the Civil Code: “Rectification of the sex marker and, where appropriate, the forenames shall be ordered at the request of any individual with a variation in genital development or, if the individual is a minor, at the request of his or her legal representatives, if it has been medically certified that his or her sex does not correspond to that indicated on the birth certificate.” 20 .     Paragraph   55 of the circular of 28   October 2011 on special rules for various civil-status documents relating to birth and parentage (formerly paragraph   228   (b) of the general instruction of 21   September 1955 on civil status, as amended by an instruction of 19   February 1970) states as follows: “55.     Sex of the child Where the sex of a newborn is uncertain, the sex marker ‘indeterminate’ should not be indicated on the birth certificate. The parents should be advised to seek guidance from their doctor as to which sex appears most probable given, where appropriate, the expected outcome of medical treatment. This sex will be indicated on the certificate and, if necessary, will be rectified subsequently by the courts if incorrect. Where, in certain exceptional cases, the doctor considers that no immediate indication of the newborn’s probable sex can be given, but it is possible to determine the sex definitively within one or two years, following appropriate treatment, it may be acceptable, subject to the public prosecutor’s approval, for the child’s sex not to be indicated initially on the birth certificate. In such cases, all necessary measures should be taken to ensure that in due course, the birth certificate may be properly completed by means of a judicial decision. In all cases of sexual ambiguity, the parents should be advised to choose a forename for the child that is suitable for either a girl or a boy.” RELEVANT DOMESTIC MATERIAL OPINION OF THE DÉFENSEUR DES DROITS 21.     In an opinion of 20   February 2017 on “respect for intersex people’s rights” (no.   17-04) the Défenseur des droits (Defender of Rights) noted under the heading “Intersex: a multifaceted, easily misunderstood reality” that all human societies were based on the male/female sex binary and that scientific research had shown in that regard that there was no single criterion that could be used to define an individual’s sex clearly; instead several characteristics came into play. Those characteristics, which reflected successive advances in scientific knowledge, were now analysed as parts of a whole, without any one being considered paramount in determining sex. They included anatomy and external genitalia (penis/vagina; early nineteenth century), gonads (testicles/ovaries; nineteenth century), hormones (testosterone/oestrogen; early twentieth century) and genetics (XY or XX chromosomes, or other combinations following the discovery of atypical chromosomes in 1959; then genes from the 1970s onwards). The Défenseur des droits further noted that there had always been individuals with so-called “ambiguous” sex characteristics and that, since the various male and female characteristics could interact on every level, determining the decisive amount of maleness or femaleness in a given individual could therefore prove to be an endless pursuit. In addition, such variations in sex development could be diagnosed at the prenatal stage, at birth, at puberty or even later in life. 22.     The Défenseur des droits asserted that legally assigning the male or female sex to intersex children at birth could amount to an interference with their right to respect for their private life. Three possible measures could be taken, together or separately, to overcome that issue: removing the sex marker from civil-status documents; creating a third sex category for those documents; and/or making it easier to change the sex marker used on them. The Défenseur des droits considered that the first measure would be difficult to implement as positive law stood at the time, since some legal rules were based on sex in order to combat discrimination. He did not express an opinion on the second measure, which he regarded as a matter for policy-makers to decide, but considered that if it were to be implemented a marker not perceived as stigmatising for the majority of intersex people would need to be chosen, and recommended “neutral”, “intersex” or no marker at all, rather than “non-specific” or “indeterminate”. He further considered that all people should have the right not to indicate their sex in everyday documents. REPORT ON “VARIATIONS IN SEX DEVELOPMENT: BREAKING A TABOO, COMBATING STIGMA AND EXCLUSION” 23.     An information report entitled “Variations in sex development: breaking a taboo, combating stigma and exclusion”, which was registered with the Presidency of the Senate on 23   February 2017, notes that the adjective “intersex” is an umbrella term covering many variations in sex characteristics that do not all have the same consequences for the individuals concerned. It refers to the definition of “intersex” given by the Council of Europe Commissioner for Human Rights, according to which “[i]ntersex individuals are persons who cannot be classified according to the medical norms of so-called male and female bodies with regard to their chromosomal, gonadal or anatomical sex”, which became “evident, for example, in secondary sex characteristics such as muscle mass, hair distribution and stature, or primary sex characteristics such as the inner and outer genitalia and/or the chromosomal and hormonal structure”. The report nevertheless recommends retaining “variation in sex development” as the official term. 24 .     In particular, the report examines “the issues and challenges that would arise for the French legal system if a ‘neutral’ or ‘indeterminate’ sex were recognised”. The relevant parts read: “... The various interviews highlighted the consensus among those spoken to on the far-reaching consequences that the recognition of a ‘neutral’ sex in French law would have for our legal rules, which have been developed in the light of the sex binary. As Astrid Marais, a professor of law at the University of Western Brittany, and Philippe Reigné, a professor at the Conservatoire national des arts et métiers (CNAM), pointed out, some of these rules are becoming less relevant today   – particularly on account of same-sex marriage   – but others endure, such as those concerning legal parent-child relationships and artificial procreation. As stated by the Ministry of Justice, ‘[t]he sex indicated on civil-status documents is ... a necessary component of our social and legal arrangements, particularly on account of its implications for the laws governing family, legal parent-child relationships and procreation’. Recognising a ‘neutral’ sex would thus give rise to ‘far-reaching changes in our system for recording civil status, which is based on the premise that all individuals have a defined sex, even though there is some tolerance as to the time-limit for registering that sex.’ Professor Astrid Marais agreed with that assessment. Moreover, in her interview on 13   December 2016, she emphasised that allowing a neutral sex would also have an impact on the future family life of any ‘intersex’ individuals who wished to have children after having their sex changed to neutral, since it would then be impossible for them to establish the legal parent-child relationship. She also asked whether artificial procreation, which is currently reserved for heterosexual couples, should then not also be open to individuals of the neutral sex. Lastly, she stressed that other legal rules could also be disrupted should a neutral sex be allowed, in particular those aimed at imposing quotas to guarantee gender equality: ‘Does this mean that, if intersex people face the same discrimination on grounds of sex as women, then quotas should be extended to them too? If so, how would these quotas be implemented?’ This issue was also highlighted by the Civil Affairs Department of the Ministry of Justice, which took the opportunity to point out that ‘[i]t would be hard to maintain the various mechanisms intended to combat sex discrimination (particularly those designed to promote gender balance) if a “neutral”, “other” or “indeterminate” category of sex were to be introduced’. The implications are therefore substantial. In conclusion, the co-rapporteurs consider that, while it is essential to ensure that ‘intersex’ people can enjoy the right to respect for their private life, any reform of their legal status should be preceded by very careful reflection. This leads us once again back to the need to compile reliable statistics on the people potentially concerned, so that the impact of such a far-reaching change may be assessed in advance   ...” REPORT ON “TOMORROW’S CIVIL STATUS AND TRANSIDENTITY” 25 .     A report entitled “Tomorrow’s civil status and transidentity” (May 2018; prepared as part of a call for proposals by the Law & Justice research project) assesses the implementation of paragraph   55 of the circular of 28   October 2011 on special rules for various civil-status documents relating to birth and parentage (see paragraph   20 above). On the basis of data in the national identity register kept by the National Institute for Statistics and Economic Studies ( Institut national de la statistique et des études économiques – “INSEE”), the report states that twenty-eight people born between 1   January 2013 and 27   February 2017 were registered as of the latter date with the marker “i” (indeterminate) and that a further twenty-five people born in the same period had been registered at birth with that marker but had since had it changed. Thus, between 2013 and 2017, fifty-three people in total had their civil status registered with no sex marker or with a marker other than male or female and had their sex listed as “i” in the national identity register. The report specifies in particular that those figures, which do not imply that only fifty-four people were born intersex in France in that period, confirm that all intersex children are eventually assigned the male or female sex, since no such individual born before 2013 is to be found in the register. STUDY BY THE CONSEIL D’ÉTAT 26.     In a study commissioned by the Prime Minister, entitled “Revising the Bioethics Act: what are the options going forward?” (28   June 2018), the Conseil d’État examined the medical-care arrangements in place for children with variations in genital development. The study includes the following relevant explanations: “... Variations in genital development refer to congenital medical situations characterised by atypical development of the chromosomal (or genetic) sex, the gonadal sex (i.e. the sex glands, the testicles or ovaries) or the anatomical sex (i.e. the visible morphological sex). People born with such variations in sex characteristics are sometimes referred to as ‘intersex’. The causes and manifestations of these variations vary widely. For the purposes of simplification, three main categories may be identified [Footnote: Two other categories deserve to be mentioned, although they comprise very few cases: children with ovotesticular DSD, who have both male and female structures; and children whose hormonal and chromosomal configurations are ‘normal’ but who have significant lesions in the lower part of the body (bladder exstrophy, cloacal exstrophy, aphallia)]. The first category encompasses XX children who unquestionably belong to the female sex but who are born with anatomically atypical genitalia (atypical development of the clitoris and no opening of the vagina into the perineum) and who most often have congenital adrenal hyperplasia (CAH). The second, far more diverse category is XY children who have a boy’s genetic formula but anomalies   – mainly of a hormonal nature   – that result in atypical formation of the genitalia (hypospadias, undescended testicles, micropenis). The third category concerns children who have what is known as a ‘mosaic’ chromosomal formula. The most common variation of this type   – although still rare   – is 45,X/46,XY mosaicism, which spans children who have several groups of chromosomes and display atypical genitalia ...” OPINION OF THE NATIONAL ETHICS ADVISORY COMMITTEE 27 .     In its opinion no.   132 of 19   September 2019 on “Ethical questions raised by the situation of people with differences of sex development”, which does not address the matter of civil status, the National Ethics Advisory Committee referred in particular to the definition adopted by the Office of the United Nations High Commissioner for Human Rights (OHCHR), according to which “[i]ntersex people are born with sex characteristics (including genitals, gonads and chromosome patterns) that do not fit typical binary notions of male or female bodies”. The Committee, for its part, spoke in terms of people with “differences of sex development”, an expression “which [did] not involve the future sexual identity and exclude[d] the notion of disease, but impl[ied] the existence of atypical sexual development”. RELEVANT INTERNATIONAL MATERIAL COUNCIL OF EUROPE Council of Europe Commissioner for Human Rights 28.     In an issue paper entitled “Human rights and intersex people” (June 2015) the Council of Europe Commissioner for Human Rights drew attention to the following items in particular (footnotes omitted): “... The Commissioner’s recommendations ... 4.     Member states should facilitate the recognition of intersex individuals before the law through the expeditious provision of birth certificates, civil registration documents, identity papers, passports and other official personal documentation while respecting intersex persons’ right to self-determination. Flexible procedures should be observed in assigning and reassigning sex/gender in official documents while also providing for the possibility of not choosing a specified male or female gender marker. Member states should consider the proportionality of requiring gender markers in official documents. ... Chapter   1 – Introduction 1.1.     Understanding intersex people When a newborn is welcomed into this world, the same question is repeatedly posed: ‘Is it a boy or a girl?’ While at face value that question is innocent, it indicates just how fundamental sex and gender classifications are to our society, as well as the binary manner in which the human sexes are categorised. It also demonstrates our limited understanding of sex, given that the rigid line with which we separate the sexes into two mutually exclusive categories does not have a parallel in nature. The sex assigned at birth will subsequently become a legal and a social fact for the newborn and will accompany them throughout the rest of their life. As they grow, go through adolescence, and become an adult, certain mannerisms, behaviours and interests will be expected to develop as ‘normal’ manifestations of the person’s assigned sex. Additionally, that sex will be clearly designated on identification documents as an ‘F’ or an ‘M’, and in some countries with an even or odd digit in personal social security numbers. Gendered symbols will also indicate which sex-segregated facilities are available to that person, and which are not. Likewise, various forms and documents throughout people’s lives will oblige them to tick F or M as part of the personal data set required before the provision of the service or entitlement in question. While the importance conferred to sex as a classifier does not pose difficulties for most people, it does create serious problems for those who do not neatly fit within the ‘female’/’male’ dichotomy. This is because society does not usually recognise a person without reference to their sex, and as a result, the ability of intersex and trans people to enjoy their human rights is especially impacted by the current normative confines of sex and gender. It is important to note the distinction between intersex and trans people: Intersex individuals are persons who cannot be classified according to the medical norms of so-called male and female bodies with regard to their chromosomal, gonadal or anatomical sex. The latter becomes evident, for example, in secondary sex characteristics such as muscle mass, hair distribution and stature, or primary sex characteristics such as the inner and outer genitalia and/or the chromosomal and hormonal structure. Differences can include the number of sex chromosomes and patterns (e.g. XXY or XO), different tissue responses to sex hormones (e.g. having one ovary and one testis, or gonads that contain both ovarian and testicular tissue) or a different hormone balance. The genitalia of some intersex persons may not be clearly identifiable as male or female, and are hence easily identifiable as intersex at birth; however, for others the detection only occurs later in life during puberty or sometimes even later (e.g. due to the absence of menstruation or physical development that is not in line with the assigned sex). Although they do not usually face actual health problems due to their status, intersex people are routinely subjected to medical and surgical treatments   – often while very young   – to align their physical appearance with either of the binary sexes without their prior and fully informed consent. Conversely, trans people externalise an innate gender identity which does not correspond with society’s gender expectations in relation to their assigned sex, and often encounter various forms of discrimination, especially following their decision to undertake a process of transition to align their body, appearance and mannerisms with their gender identity. In esse