Gender under construction
ADF Intl files brief in European Court cases
STRASBOURG, France – ADF International filed a third-party brief Thursday with the European Court of Human Rights in three cases against France centered around the issue of how member states recognise claims to gender changes after birth.
The brief warns of the negative impact on member states should the court issue a ruling that prescribes how states should recognise such changes. It also cautions against giving undue credence to the “Yogyakarta Principles,” a controversial document from 2006 relied upon in the three cases.
“The court has already dealt with the question of whether countries should provide a mechanism for changes to gender after birth,” said ADF International Legal Counsel Robert Clarke. “There is currently a wide margin of appreciation for member states when it comes to how this should be done. Any ruling from the court which impinges on the discretion of member states in this area would be extremely problematic, given the lack of consensus concerning the diagnosis and treatment of transgenderism.”
Each of the cases involves a French citizen who has attempted to change his gender, as noted in the registry, from male to female.
In the case of A.P. v France, the applicant says that he underwent sex reassignment therapy in Thailand. The French courts insisted that a panel of three experts (a psychiatrist, an endocrinologist, and a gynaecologist) examine the applicant’s mental and behavioural state in relation to gender and to confirm transition. The applicant refused to be examined, claiming that it was expensive and “disrespectful of the physical and moral integrity of the person.”
In the case of Garcon v France, the applicant presented the court with a certificate that an endocrinologist issued. It stated that the applicant had undergone hormone therapy since 2004 and that the treatment was effective, but the court stated that the applicant had failed to establish the reality of transsexualism.
Both of these applicants are lodging complaints against France on the basis of Article 8 of the European Convention on Human Rights.
In the case of Nicot v France, the applicant requested a change in gender from male to female, without having undergone any gender reassignment surgery. French law requires those requesting any change in recorded gender to have medical documents documenting a permanent transition. Because the applicant did not undergo any treatment or surgery (and therefore did not have such documents), the court rejected the request.
ADF International’s brief argues that the practical question of how changes in gender after birth should be recognised is best decided at the national level.
With such divisive medical and psychological debates taking place over the nature of the treatment and diagnosis of transgenderism, it would be wholly inappropriate for this Court to make a decisive pronouncement…
“With such divisive medical and psychological debates taking place over the nature of the treatment and diagnosis of transgenderism, it would be wholly inappropriate for this Court to make a decisive pronouncement which would strip member states of their role in determining the most proportionate and appropriate means of promoting public order, public health and morals under Article 8 of the Convention,” the brief explains.
All three applications before the European Court rely on the “Yogyakarta Principles,” which represents a non-binding and non-democratically created list of alleged human rights related to “lesbian, gay, bisexual, and transsexual” individuals.
ADF International’s brief warns that any reliance on these principles by the European Court would set a dangerous precedent.
“It is submitted that this Court, if it relies on the Principles, would be doing something never before done by an international tribunal,” the brief states. “That being the legitimizing of a non-binding, non-legislatively drafted document without any governmental or inter-governmental input as a binding human rights document.”
ADF International is an alliance-building, non-profit legal organisation that advocates for the right of people to freely live out their faith.