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French law is based on two genders – Strasbourg court

The European Court of Human Rights (ECtHR) has held, by six votes to one, that there had been no violation of article 8 (right to respect for private and family life) of the European Convention on Human Rights in the case of Y v France.

The applicant, who is a biologically intersex person, had complained about the domestic courts’ refusal to grant his request to have the word ‘neutral’ or ‘intersex’ entered on his birth certificate instead of ‘male’.

In examining the case in the light of the respondent state’s positive obligation to secure effective respect for the applicant’s private life, the court weighed the general interest against the applicant’s interests.

The court acknowledged that the discrepancy between the applicant’s biological identity and his legal identity was liable to cause him suffering and anxiety.

Civil status

In refusing the applicant’s request, the court cited the inalienability of civil status, and the need to preserve the consistency and reliability of civil-status records, and of the social and legal arrangements in place in France.

It also took into consideration the Court of Cassation’s reasoning to the effect that judicial recognition of a ‘neutral’ gender would have far-reaching consequences for the rules of French law, which was based on two genders, and would imply multiple co-ordinating legislative amendments.

The court noted that the Orléans Court of Appeal had held that granting the applicant’s request would amount to recognising the existence of another gender category and, therefore, to exercising a normative function, which was in principle a matter for the legislature, and not for the judiciary.

The court pointed out that respect for the principle of the separation of powers, without which there was no democracy, had been at the heart of the domestic courts’ considerations.

National law

Although the applicant stated that he was not asking for the enshrinement of a general right to recognition of a third gender, but only for rectification of his civil status, the court noted that, if upheld, this would necessarily mean that the respondent state would be required, to discharge its obligations under article 46 of the convention, to amend its national law to that effect.

In consequence, the court considered that it, too, was required to exercise restraint.

In matters of general policy, on which opinions within a democratic society could reasonably differ widely, a special weight had to be accorded to the role of the domestic policy-maker.

Society

This was particularly so when the question was one on which society would have to make a choice.

In the absence of a European consensus in this area, it was therefore appropriate to leave it to the respondent state to determine at what speed and to what extent it could meet the demands of intersex persons, the court said.