LAUSR

In AP, Garcon and Nicot v France App Nos. 79885/12, 52471/13 and 52596/13 (ECtHR, 6 April 2017) (‘APN’), the Fifth Chamber of the European Court of Human Rights (ECtHR) issued an important ruling on the conditions which State Parties may impose for legal gender recognition. The case concerned three transgender (‘trans’) women – none of whom had been formally acknowledged as female – who challenged various aspects of France’s gender recognition system. Each of the applicants argued that, by obliging individuals to irreversibly modify their bodies, French law imposed surgical and other medical treatments which had a high probability of sterilisation. The second applicant additionally complained that, by conditioning gender recognition on proof of a diagnosis of gender identity disorder, France had infringed her dignity. Finally, the first applicant, who had medically transitioned in Thailand but who was required to submit to physical examinations by court-appointed experts, alleged that such examinations were potentially degrading treatment. The ECtHR, building upon its earlier decision in YY v Turkey App No. 14793/08 (ECtHR, 10 March 2015), reaffirmed that article 8 of the European Convention on Human Rights (ECHR) guarantees the physical and moral integrity of trans individuals (para. 93). When balancing that right against the general public interest (i.e. the need to create a reliable, coherent and secure civil status [para. 132]), France enjoyed only a ‘restricted’ margin of appreciation (para. 123). While there was not yet a European consensus on sterilisation, such requirements undermined a fundamental aspect of intimate identity and were increasingly being repealed across the Council of Europe (paras. 123–124). The Court observed that mandatory infertility places trans persons in an ‘insoluble dilemma’ (para. 132). They must either submit to sterilising treatments, and compromise their physical integrity, or relinquish their right to gender recognition and live with a discordant civil status. Where sterilisation is a pre-condition for the right to gender identity and personal development, it cannot be consensual or voluntary (para. 130). In those circumstances, the Fifth Chamber (by a majority of six to one, Judge Ranzoni dissenting) concluded that France had failed in its positive obligation to respect private life. On the other hand, the ECtHR adopted a more deferential approach towards diagnoses and medical examinations. The Court noted that, among the 41 State Parties which currently