ECHR found a violation on the case of legal gender recognition of trans men. According to the statement published by the European Court, it has been established that Article 8 of the Convention has been violated and there is no need to review Articles 3 and 14 of the Convention.
According to GYLA, the position of the Government of Georgia was not clear to the European Court of Human Rights, according to which gender reassignment should be evaluated by “biological, physiological and/or anatomical criteria”, in the light of the fact that there are no legal definitions for this. The court pointed out that the use of these terms requires great care and precision, as each of them leads to different legal consequences. The European Court explained that, for example, if sex change is to be assessed by biological criteria, then it will never be possible to legally recognize/change gender, because genetic sex cannot be changed medically.
“The court emphasized that Article 8 of the European Convention on Human Rights obliges the state to provide fast, transparent and accessible procedures, through which changing the registered gender marker will be possible,” GYLA said.
Nikolo Ghviniashvili, who is one of the 3 transgender men, applied to the European Court in 2019, while two of the upper mentioned men – in 2017. The rights of Nikolo Ghviniashvili are represented by the Association of Young Lawyers of Georgia in cooperation with EHRAC, Women’s Initiatives Support Group (WISG) together with the European Human Rights Center (EHRAC) are representing A.D. and A.K.
According to GYLA, the court did not explain in detail what a fast, easy and accessible procedure should be, although it is explained in the policy document prepared by WISG, taking into account international standards, according to which:
“Expedited mechanism refers to a procedure that ensures the shortest possible interval from the filing of the application to the change of the record. The mechanism will be considered transparent if the law clearly regulates the procedure for changing the record of name and gender, including which agency interested persons should apply for. Accessibility of the procedure focuses on a more practical aspect and implies the elimination of barriers that may be related to a person’s health, age, limited ability. The issue of accessibility also refers to financial accessibility, which may not become a barrier for a trans person.”
According to GYLA, the European Court says: “the main problem in the present case is that it is completely unclear what the legal regime of sex/gender marker change is actually in Georgia. “At the same time, the court emphasized that the main problem is the unanswered question from the state and national courts: what are the necessary medical procedures for the legal recognition of gender.
The organization also says that the position of the Georgian government was not clear to the European Court of Human Rights, according to which sex change should be evaluated by “biological, physiological and/or anatomical criteria”, in the light of the fact that there are no legal definitions for this. The court pointed out that the use of these terms requires great care and precision, as each of them leads to different legal consequences.
Based on all of the above, the court concluded that “the absence of clear legal grounds leaves the decision-making bodies with wide discretionary powers, which creates the danger of arbitrary decisions when considering applications for legal recognition of gender”.
The Court unanimously found that the respondent State was obliged to pay the following amounts to the applicants as compensation within 3 months of the judgment’s entry into force: 2,000 EUR to all three applicants, plus any fees that may be charged, in terms of moral damages, and 9,812 EUR to the third applicant, in addition any charges which may be imposed, in terms of costs;
According to the lawsuit, despite the absence of relevant legal regulations, the state authorities consider performing a surgical operation as a prerequisite for changing the gender record, which violates the right of the applicant to respect for private life (Article 8 of the Convention) and prohibition of inhuman treatment (Article 3 of the Convention). Furthermore, such treatment puts transgender people in an unequal position with respect to other groups contrary to the requirements of Article 14 of the Convention.
As for another lawsuit at the Strasbourg court, which involved the banning of LGBTQI symbols in stadiums, the European Court said that the decision of the prosecution authorities not to open a criminal investigation in the case should have indicated to the plaintiffs that they should have applied to a civil law authority, which would be more suitable for consideration and satisfaction of their claims.