CEDH · CASELAW;CLIN;ENG — 25 mars 1992

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France - 13343/87 Judgment 25.3.1992 Article 8 Article 8-1 Respect for private life Non-recognition in law of the new sexual identity of a post-operative transsexual: violation [This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.] I.   QUESTIONS OF JURISDICTION AND ADMISSIBILITY A.   Court's jurisdiction to examine the Government's preliminary objections Court saw no reason, as matters stood, to abandon a line of case-law which had been followed constantly for over twenty years and had found expression in a large number of judgments. Conclusion : Court had jurisdiction (sixteen votes to five). B.   Merits of the preliminary objections 1.   Failure to exhaust domestic remedies Applicant had complained in substance before the Libourne tribunal de grande instance and Bordeaux Court of Appeal of a violation of her right to respect for her private life.   Her appeal dismissed by the Court of Cassation as ill-founded, not declared inadmissible because of novelty. Conclusion : objection dismissed (unanimously). 2.   Whether application out of time Applicant had submitted to the Court of Cassation a point of law relating to Article 8.   No consistent case-law at the time to show in advance that her appeal was pointless.   Appeal to Court of Cassation in principle one of the remedies to be exhausted in order to comply with Article 26, and at the very least had the effect of postponing the starting-point of the six-month period. Conclusion : objection dismissed (unanimously). II.   THE MERITS A.   Article 8 Notion of "respect" in Article 8 not clear-cut.   In determining whether or not a positive obligation existed, necessary to have regard to the fair balance to be struck between the general interest and the interests of the individual. 1.   Scientific, legal and social developments It was undeniable that attitudes had changed, science had progressed and increasing importance was attached to the problem of transsexualism.   However, there still remained some uncertainty as to the essential nature of transsexualism and the legitimacy of surgery in such cases was still questioned. Legal situations resulting therefrom extremely complex.   No sufficiently broad consensus between the member States of the Council of Europe to persuade the Court to reach opposite conclusions to those in its Rees and Cossey judgments. 2.   Differences between the French and English systems Noticeable differences between France and England with reference to their law and practice on civil status, change of forenames, use of identity documents, etc.   Court examined possible consequences of these differences. (a)   Civil status (i)   Rectification of civil status documents Nothing would have prevented the insertion, once judgment had been given, in the applicant's birth certificate of an annotation whose purpose was to reflect her present position.   Courts of first instance and courts of appeal had already ordered similar insertions to be made in the cases of other transsexuals.   Case-law of Court of Cassation contrary to this, but could change. Applicant had undergone the surgical operation abroad, without the benefit of all the medical and psychological safeguards now required in France.   Operation nevertheless involved the irreversible abandonment of the external marks of her original sex.   Applicant's determination constituting a factor of sufficient significance to be taken into account, together with other factors, with reference to Article 8. (ii)   Change of forenames Judgments supplied to the Court by the Government showed that non-recognition of a change of sex did not necessarily prevent the person in question obtaining a new forename which would better reflect his or her physical appearance. Case-law not settled, however, when Libourne and Bordeaux courts gave their rulings - appeared still not to be settled as Court of Cassation had apparently never had occasion to confirm it.   Choice restricted to a few "neutral" forenames. Refusal to allow applicant the change of forename requested by her: relevant factor from the point of view of Article 8. (b)   Documents Inconveniences complained of by applicant: reached a sufficient degree of seriousness to be taken into account for the purposes of Article 8. Conclusion : violation (fifteen votes to six). Respondent State had several means to choose from for remedying this state of affairs; not the Court's function to indicate the most appropriate. B.   Article 3 Complaint not reiterated before the Court. Conclusion : no need to examine the question of the Court's own motion (unanimously). III.   ARTICLE 50 A.   Damage Pecuniary damage: applicant's difficulty in finding work because of having to disclose her circumstances: not insurmountable - claim dismissed. Non-pecuniary damage: compensation awarded. B.   Costs and expenses before Court of Cassation and Convention institutions: reimbursed on equitable basis. Conclusion : respondent State to pay specified sums to the applicant (unanimously).   © 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