To What Extent has the European Court of Human Rights Encouraged the Development of Transgender Rights in Europe?

Lucrezia Nicosia
Journalist and podcaster, LL.B. candidate in European law at Maastricht University

The European Convention on Human Rights (ECHR) is a human rights instrument aimed at upholding the rule of law and promoting democracy in Europe among the 47 members of the Council of Europe (CoE). It was formally drafted on the 4th of November 1948 in the aftermath of the atrocities of the Second World War. Indeed, the rationale behind it was to ensure that governments would never again dehumanise and violate people’s rights without repercussions.

The wording of the ECHR provisions is a reflection of a specific historical understanding of human rights, which was shaped by the experiences of the war. However, over time this perception has evolved to respond to the changing needs of society. This article will focus on how transgender rights have progressed in Europe and how this evolution is reflected in the jurisprudence of the European Court of Human Rights (ECHR).

When the Convention was drafted, the issues of gender identity – and LGBTQ+ rights in general – were hardly considered in the social and political discourse. For this reason, especially Article 8 ECHR (right to respect for private life and family life), Article 12 ECHR (right to marry), and Article 14 ECHR (prohibition of discrimination) were only accessible to the cisgender and heterosexual community. As time has progressed, and the issues of gender and sexual diversity have become more prominent in society, the European Court of Human Rights has begun to take a more progressive stance on LGBTQ+ rights.

As it has been stated by the Court itself in the case Christine Goodwin vs the United Kingdom, the ECHR is a “living instrument” that changes over time and which should be interpreted in the light of “present-day conditions”.  Nevertheless, because the provisions themselves are unchanged, this progression is only possible through a process of interpretation of the rights set out in the Convention according to the overall situation in Europe. In this concern, it is important to define the role that European consensus played in shaping the interpretation of the ECHR.

European consensus is formally defined as a means of interpretation of the Convention deployed by the Court in instances of complex human rights issues, when supported by the majority of the 47 Contracting Parties. It consists of a rebuttable presumption that favours the solution adopted by the majority of the Contracting States and which can be disputed only if there are sufficient and valid reasons against its compliance. This typically applies when there are historical, political and moral issues at play in the respondent State. These are often more sensitive and controversial topics, such as same-sex marriages, abortion, euthanasia, and transgender identity.

Furthermore, European consensus plays a significant role in relation to other tools of interpretation of the ECHR: the margin of appreciation of the Contracting States and the evolutive interpretation of the Convention. The former is defined as the space for manoeuvre that the Strasbourg organs are willing to grant national authorities in fulfilling their obligations under the European Convention of Human Rights. In antithesis to this, evolutive (or dynamic) interpretation is a tool of interpretation that grants the Court a certain level of flexibility to ensure the effective realisation of human rights throughout time.

The exclusive use of a progressive approach threatens the cohesion and predictability of the Court’s judgments, as it contributes to a lack of predictability in the Court’s judgments and a lack of stability in the Contracting States’ obligations under the ECHR. Yet, a system that always allows States to have a great degree of interpretation in sensitive areas renders the fight for minority rights ineffective. Based on this understanding, the adoption of European consensus for the application of the Convention’s provisions appears to be the most reasonable way to strike a just balance between the two mentioned opposites.

Nevertheless, the deployment of European consensus as a tool of interpretation of the Convention cannot be considered the most progressive means to carry out renovations in legislation, as it simply restates what has already been settled by national measures or international treaties for the protection of transgender rights. This is because the Council of Europe operates as an intergovernmental organisation established to rule on sovereign independent states and therefore it cannot arbitrarily decide upon a new interpretation of the Convention without first establishing the emergence of a consensus on a particular matter. The existence of this common approach is ultimately the result of already settled national legislation in the majority of the Contracting Parties that demonstrate a positive approach in Europe towards the evolution of the specific human rights issue.

This reasoning can further be explained in light of the ECHR jurisprudence on the legal recognition of the change of sex of postoperative transsexuals. The focus is on Rees vs the United Kingdom (1986) and B vs France (1992). The first case concerned a transsexual man who was denied the right to change the sex on his birth certificate. This caused him embarrassment and humiliation, and it limited his ability to get married, prevented him from claiming certain pension rights, and excluded him from certain jobs. The Court, which was asked to rule on whether the right to privacy enshrined in Article 8 ECHR had to be interpreted to include the right to have a new gender recognised in law, found no violation of the provision. The reasons for this were mainly two: first, the right for gender recognition would have been too burdensome on the UK legislative system; second, a change in law was not possible due to the transitional stage of trans rights within Europe.

Nevertheless, the situation was dealt with differently in B v France, despite the temporal proximity and similarity with the case Rees v the United Kingdom. In this case, the ECtHR stated that there was an obligation on the part of the State’s authorities to recognise in law a change in gender identity, as this would not be as burdensome for France as the UK.

While in the first case the Court considered the “transitional stage of trans rights” not to be sufficient to trigger a violation of Article 8 ECHR, in the second case the judgment was different. This illustrates something: the decisive criteria that influenced the decision-making process of the Court was not whether or not European consensus could be established, but whether or not national legislation would allow the change.

However, this approach towards trans rights changed with the case Christine Goodwin v. the United Kingdom which represented a turning point in the legal recognition of post-operative transsexuals. The facts of the case were formally identical to previous cases presented before the Court, but the outcome was completely different. What was decisive in the Court’s ruling was the existence of “clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals”, as well as the acknowledgment of the notion of personal autonomy as an added principle protected by Article 8 ECHR and which includes “the right to establish details of their identity as individual human beings”. For the first time, the European Court of Human Rights adopted a broader and autonomous interpretation of the rights granted by the Convention, allowing for broader protections for transgender rights that otherwise would not have occurred.

Another important breakthrough in this process happened in 2015 when the ECtHR finally specified explicitly that all transgender people – and not only transsexuals – are entitled to the enjoyment of the ECHR rights without discrimination.

It is evident that there is still a long way to go to achieve full protection and recognition of transgender rights; however, the above-described developments illustrate that the legal landscape in Europe is evolving. Indeed, while the initial application of the ECHR was based on a static set of rules developed in the late 40’s, this approach has increasingly changed to reflect the social and legal context in which it operates.

The deployment of European consensus as a tool of interpretation of the Convention advanced major changes in the Court’s rulings, but it was not the only determinant. Indeed, in Christine Goodwin vs the United Kingdom, the ECtHR took a more supranational stance for the first time and based its decision on a more autonomous interpretation of the ECHR. The Court decided that it was the moment to rule on the widespread discrimination against the transgender community and to affirm an evolutive approach to the Convention which renders its rights “practical and effective, not theoretical and illusory”.