CEDH · CASELAW;CLIN;ENG — 8 janvier 2009

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Switzerland - 29002/06 Judgment 8.1.2009 [Section I] Article 6 Civil proceedings Article 6-1 Fair hearing Public hearing Refusal to hear expert evidence in case concerning liability for medical costs incurred in connection with sex-change operation: violation Lack of public hearing in case concerning liability for medical costs incurred in connection with sex-change operation: violation   Article 8 Article 8-1 Respect for family life Respect for private life Balancing of competing interests of applicant and her insurers in case concerning liability for medical costs incurred in connection with a sex-change operation: violation   Facts : The applicant was registered at birth under the name Max Schlumpf, of male sex. According to an expert medical report in 2004, the applicant decided in 2002 to change sex and from then on had lived her daily life as a woman. She began hormonal therapy in January 2003 and had been receiving psychiatric and endocrinological treatment since May 2003. The doctor confirmed the diagnosis of male-female transsexualism and stated that the applicant satisfied the conditions for a sex-change operation. In 2004 the applicant asked her health insurers to pay the costs of the sex-change operation. They refused on the ground that under the case-law of the Federal Insurance Court the mandatory clause which health-insurance policies were required to include for reimbursement of the costs of a sex-change operation applied only in cases of “true transsexualism”, which could only be established after a two-year observation period during which the patient was required to receive psychiatric and endocrinological treatment. Following an operation, which was successful, the applicant asked her health insurers to issue a decision against which an appeal would lie, but they refused. She unsuccessfully appealed against that decision. In the meantime, the applicant’s civil status was modified to reflect her sex-change and she was registered under the forename of Nadine. The applicant appealed to the cantonal insurance court, which   set aside the health-insurers’ refusal to pay the costs of the sex-change operation after accepting that the diagnosis of the applicant’s transsexualism was certain. The insurance company appealed to the Federal Insurance Court. The applicant explicitly asked the Federal Insurance Court for a public hearing and requested that it call expert witnesses to answer questions on the treatment of transsexualism. The Federal Court refused her request for a public hearing, partly on the grounds that the relevant issues were legal questions, so that a public hearing was not necessary. It also reaffirmed the pertinence of the two-year observation period, noting that despite the views expressed by the experts during the proceedings and advances in medical knowledge, it was still necessary to exercise caution, particularly as the operation was irreversible and it was important to avoid unjustified operations. The Federal Insurance Court found that at the time of the operation the applicant had been under psychiatric observation for less than two years so that the health-insurers had been justified in refusing to reimburse the costs. Law : Article 6 § 1 – (a) Right to a fair hearing :It had been disproportionate not to accept expert opinions especially as it was not in dispute that the applicant was ill. By refusing to allow the applicant to adduce such evidence, on the basis of an abstract rule which had its origin in two of its own earlier decisions, the Federal Insurance Court had substituted its own view for that of the doctors and psychiatrists, even though the European Court had previously ruled that determination of the need for sex-change measures was not a matter for judicial assessment. Consequently, the applicant had not had a fair hearing before the Federal Insurance Court. Conclusion: violation (unanimously). (b)     Right to a public hearing : In the light of the foregoing conclusions concerning the right to a fair hearing, determination of the need for a sex change could not be regarded as a purely legal issue. Further, determination of the need for a sex-change operation was not so technical a process as to justify an exception to the right to a public hearing, especially as the parties did not agree on the need for an observation period. Moreover, domestic law expressly granted the President of the Federal Insurance Court the right to direct the conduct of the hearing. The applicant had thus been denied a public hearing before the domestic courts. Conclusion : violation (unanimously). Article 8 – The proceedings instituted by the applicant in the domestic courts concerned her freedom to decide on her gender identity. While the Convention did not guarantee any right to the reimbursement of medical costs incurred for a sex change and nobody had prevented the applicant from having a surgical operation, the two-year wait imposed by the insurance company contrary to the clear views of the specialists was, in the light notably of the applicant’s relatively advanced age, liable to influence her decision whether to have the operation. The applicant could therefore claim victim status for the purposes of Article 34 of the Convention. The central issue in the case was the manner in which the Federal Insurance Court had applied the criteria governing the reimbursement of medical costs when called upon to decide the applicant’s claim for the reimbursement of the costs of her sex-change operation. It had relied on a criterion without any statutory basis which it had established in its own case-law. When insisting on compliance with the two-year observation period, the Federal Court had refused to carry out an analysis of the specific circumstances of the applicant’s case or to weigh up the various competing interests. The domestic authorities should have taken the specialists’ opinions into account in order to determine whether an exception should be made to the two-year rule, in particular in view of the applicant’s relatively advanced age and her interest in having an operation without delay. Further, the Federal Insurance Court had failed to take into account the medical advances that had been made in identifying “genuine” transsexualism since its two leading judgments in 1988. Respect for the applicant’s private life would have necessitated the medical, biological and psychological facts, which had been unequivocally explained by the medical experts, to be taken into account to avoid the mechanical application of the two-year observation period. In view of the applicant’s very particular situation – she had been over 67 years old when she requested the State to pay for the operation – and the respondent State’s limited margin of appreciation in relation to a question concerning one of the most intimate aspects of private life, the Court concluded that a fair balance had not been struck between the insurance company’s and the applicant’s interests. Conclusion : violation (five votes to two). Article 41   – EUR 15,000 for non-pecuniary damage (five votes to two).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes