CASE OF X v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

1. The case originated in an application (no. 29683/16) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, X (“the applicant”), on 23 May 2016. The Vice- President of the Section acceded to the applicant ’ s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court). Respecting his self-identification, the Court will refer to his gender as male.
2. The applicant was represented by Ms N. Boshkova and Mr Cojocariu, lawyers practising in Skopje and Orpington, United Kingdom, respectively. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov, who was succeeded by their current Agent, Ms D. Djonova.
3. The applicant, who is transgender, alleged the absence of a legislative framework and an effective remedy for legal gender recognition and the arbitrary and unjustified imposition of a requirement for genital surgery to be undertaken in order to have his sex/gender marker in the official records changed.
4. On 10 March 2017 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. It was also decided that priority should be granted to the application under Rule 41 of the Rules of Court.
5. On 6 and 9 June 2015 the non-governmental organisations Alliance Defending Freedom International (ADF) and, jointly, Transgender Europe, the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), Trans Network Balkan (TNB) and Subversive Front were given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1987 and lives in Skopje.
7. At birth the applicant was registered as a girl, with a clearly female name. The applicant submitted that from an early age he became aware that he was male rather than female. Not being able to obtain appropriate medical treatment in the respondent State, in 2010 the applicant went to a specialist clinic in Belgrade, where a psychologist and sexologist diagnosed him with “transsexuality”. A medical certificate dated 20 September 2010 included a recommendation that the applicant pursue hormone treatment with a view to eventual genital reassignment surgery. The applicant started taking hormones to increase his testosterone levels.
8. On 1 June 2011 the applicant applied for a change of his first and family name. In a decision of 7 June 2011 the Ministry of the Interior allowed that application, registering the applicant under a clearly male forename (the applicant also changed his surname). Soon after, it issued the applicant with a new identity card bearing his new name. However, the sex/gender marker and numerical personal code (composed of ten digits, some of which indicate the person ’ s sex) remained the same, identifying the applicant as a female.
9. On 5 July 2011 the applicant lodged an application to have the sex/gender marker and the numerical personal code on his birth certificate corrected ( корекција ) to indicate that he was male. In support of his application he submitted copies of a medical report by a surgeon at the specialist clinic in Belgrade (see paragraph 7 above) and referred to the paper entitled “Human rights and gender identity” of October 2009 issued by the Commissioner for Human Rights of the Council of Europe (see paragraph 34 below) and the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.
10. In a decision of the same date, the Civil Status Registry (“the Registry ”) – a body within the Ministry of Justice (“the Ministry”) ‑ dismissed the applicant ’ s application, stating that “no certificate [has been] issued by a competent authority [attesting to the fact] that [the applicant ’ s] sex [ had ] been changed, the application having been corroborated only with a certificate that gender reassignment surgery [ was ] in preparation, which cannot be regarded as proof that it [ would ] take place.”
11. The applicant appealed to the Ministry, alleging that there was no statutory provision that regulated the matter in hand. Sex reassignment surgery was unavailable in the respondent State and unjustified in his case. Furthermore, such a requirement would subject him to unwanted medical treatment and sterilisation, in breach of his rights. He argued that he had already been diagnosed as transsexual, which was sufficient to obtain legal gender recognition. In a decision of 17 October 2011 the Ministry dismissed the appeal, finding that the impugned decision had been based on section 23 of the Civil Status Registration Act ( Закон за матичната евиденција ) (“ the Act ”; under the 2016 amendment this provision became section 22(2 ) – see paragraph 25 below) and that the evidence produced had not been “sufficient and relevant” in respect of the alteration ( промена ) sought.
12. In November 2011 the applicant challenged the refusal of the lower administrative authorities to modify his sex/gender marker on the birth certificate before the Administrative Court. He argued that there was no statutory provision proscribing or specifying any conditions for the alteration of a person ’ s sex/gender marker and personal code.
13. On 28 February 2013 the Administrative Court quashed the Ministry ’ s decision. Since the applicant ’ s request had not been in the case file, the court could not ascertain whether the applicant had sought the rectification or alteration of the sex/gender marker only or also of the personal code, the latter having not been addressed in the impugned decision. It also held that the Ministry should have specified the appropriate evidence required and set a time-limit for the applicant to provide it. Lastly, the court found that the Ministry had neither established the relevant facts nor provided adequate reasons for its decision. In this connection it held that section 23 of the Civil Status Registration Act did not specify any requirement to have the sex/ gender marker changed; it only contained an instruction to administrative authorities regarding the evidence to be adduced and assessed in such proceedings.
14. On 11 June 2013 the applicant underwent a double mastectomy (breast removal) in Belgrade and continued his hormonal therapy.
15. In the resumed proceedings, the Registry instructed the Forensic Institute ( Институт за судска медицина ) to examine the applicant. As reported in the Registry ’ s decision (see paragraph 17 below), on 20 June 2014 the Forensic Institute drew up a report, which stated: “ [O] wing to his mastectomy and on-going hormonal therapy, [the applicant] displays male sexual characteristics which affect his everyday life. Although there is no statutory regulation ... and the second genital surgery has not been carried out, [the experts] consider that [the applicant] should be provided with a document attesting to his new sex ...”
16. The Registry also requested that the Ministry of Health specify the nature of the certificate and the authority competent to attest to the change of the applicant ’ s sex. In reply, the Ministry of Health stated that the sex alteration procedure was not specified in health-related regulations and suggested that evidence regarding prior medical intervention in respect of the applicant should be taken into consideration.
17. On 29 December 2014 the Registry, referring to section 23 of the Act, dismissed the applicant ’ s request for the alteration of the sex/gender marker on the birth register, holding that despite its requests to competent authorities it had not obtained “evidence of an actual change of sex ( не прибави доказ со кој ќе утврди фактичка состојба која укажува на промена на полот ) ”.
18. The applicant appealed against that decision. On 16 October 2015 the Ministry dismissed the appeal and upheld the decision of the Registry.
19. On 11 November 20 15 the applicant challenged the latter decision before the Administrative Court, arguing that section 23 of the Act did not specify any requirement for an alteration of the sex /gender marker in civil ‑ status documents. He furthermore submitted that the Registry had authority to administer civil-status records and accordingly to decide on the matter. The applicant also referred to the Court ’ s case-law on the matter.
20. On 28 April 2017 the Administrative Court set aside the Ministry ’ s decision since it had failed to forward the case file.
21. On 28 February 2018 the Registry rejected ( отфрла ) the applicant ’ s application for lack of jurisdiction ( ненадлежност ), holding that it did not concern the rectification of an error in an entry, but the alteration of the sex /gender marker in the civil status register. On 13 July 2018 the State Commission, which had become competent to decide such issues in second instance, upheld that decision. The proceedings before the Administrative Court are underway.
22. The applicant submitted several reports from 2012 and 2016 in which psychologists had found that the protracted procedure in respect of seeking legal recognition of the applicant ’ s gender identity was having negative consequences on his psychosocial and mental health and everyday life.
II. RELEVANT DOMESTIC LAW AND PRACTICE
23. Under Article 8(2) of the Constitution, everything that is not prohibited by the Constitution and laws is permitted.
B. Civil Status Registration Act
24. Under section 2 of the Act, the Registry has jurisdiction to administer the civil status register.
25. Section 2 2(2) of the Act provides that the registrar ( матичар ) rectifies errors in an entry in the civil status register until registration is completed and after it is completed – errors are to be rectified by means of a decision.
C. Personal Name Act ( Закон за личното име )
26. Under section 5 of the Personal Name Act, a person can apply to have his or her forename and family name changed.
27. Section 6 of the Act provides that a change of a personal name will not be allowed in respect of a person who is prosecuted or convicted for an offence subject to State prosecution and who has not yet served his or her sentence. Such a request will also not be granted in respect of a person who has not fulfilled property-related or other marital- and parental-related obligations prescribed by law. The Ministry of the Interior is responsible for obtaining relevant evidence and information in this respect.
28. Section 7 provides that a request to have one ’ s personal name changed is to be submitted to the Ministry of the Interior, which shall decide on it within thirty days.
29. Section 8(2) of the Courts Act provides that a court cannot reject a civil claim owing to a lacuna in the law; rather, it shall decide on it on the basis of general principles of law unless it is explicitly prohibited from doing so by law.
30. In two judgments of 25 September and 2 October 2017 ( U ‑ 6.no.909/2015 and Ui.no.16/2017), the Administrative Court recognised the new gender identity of two post-operative transgender people who had undergone “male-to-female transgenderism” medical surgery and ordered the relevant administrative authorities to register the claimants ’ new gender in the civil status register and to amend their numerical personal codes appropriately. According to the Government, the Registry was obliged to change the sex/gender markers in their birth certificates on the basis of those judgments.
A. Committee of Ministers of the Council of Europe
Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, 31 March 2010
31. The relevant parts of the Recommendation read as follows:
“IV Right to respect for private and family life
21. Member States should take appropriate measures to guarantee the full legal recognition of a person ’ s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way; member states should also ensure, where appropriate, the corresponding recognition and changes by non-state actors with respect to key documents, such as educational or work certificates.”
B. Parliamentary Assembly of the Council of Europe
1. Resolution 2048 (2015) on “Discrimination against transgender people in Europe”, 22 April 2015
32. The relevant parts of the Resolution read as follows:
“ 6. ... the Assembly calls on member States to:
6.2. as concerns legal gender recognition:
6.2.1. develop quick, transparent and accessible procedures, based on self-determination, for changing the name and registered sex of transgender people on birth certificates, identity cards, passports, educational certificates and other similar documents [and] make these procedures available for all people who seek to use them, irrespective of age, medical status, financial situation or police record;
2. Resolution 1728 (2010) entitled “Discrimination on the basis of sexual orientation and gender identity”, 29 April 2010
33. The relevant parts of the Resolution read as follows:
“16. Consequently, the Assembly calls on member States to address these issues and in particular to:
16.11. address the specific discrimination and human rights violations faced by transgender persons and, in particular, ensure in legislation and in practice their right to:
16.11.2. official documents that reflect an individual ’ s preferred gender identity, without any prior obligation to undergo sterilisation or other medical procedures such as sex reassignment surgery and hormonal therapy;
C. United Nations High Commissioner for Human Rights
Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity (A/HRC/19/41), 17 November 2011
34. The relevant parts of the above report read as follows:
“G. Gender recognition and related issues
71. In many countries, transgender persons are unable to obtain legal recognition of their preferred gender, including a change in recorded sex and first name on State-issued identity documents. As a result, they encounter many practical difficulties, including when applying for employment, housing, bank credit or State benefits, or when travelling abroad.
73. The Human Rights Committee has expressed concern regarding lack of arrangements for granting legal recognition of transgender people ’ s identities. It has urged States to recognize the right of transgender persons to change their gender by permitting the issuance of new birth certificates and has noted with approval legislation facilitating legal recognition of a change of gender.
VII. Conclusions and recommendations
84. The High Commissioner recommends that Member States:
(h) Facilitate legal recognition of the preferred gender of transgender persons and establish arrangements to permit relevant identity documents to be reissued reflecting preferred gender and name, without infringements of other human rights.
Transgender Europe, “Trans Rights Europe Map 2018”, published on 14 May 2018
35. It can be seen from a document entitled “Trans Rights Europe Map 2018”, published by the non-governmental organisation Transgender Europe, that legal recognition of the gender identity of transgender people is not possible in seven Council of Europe member States (Albania, Andorra, Cyprus, Liechtenstein, Monaco, San Marino and the former Yugoslav Republic of Macedonia). The document also makes clear that such recognition, even where it is possible, is subject to different legal requirements, such as sterilisation, compulsory medical intervention or mental health assessment, divorce or age restrictions.
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
36. The applicant complained under Article 8 of the Convention of the lack of a regulatory framework for the legal recognition of his gender identity and about the requirement, which had no basis in domestic law, that he undergo genital surgery as a precondition for having his (male) gender identity recognised. Under Article 13, the applicant alleged a lack of an effective remedy. The Court considers that this later complaint is absorbed by the applicant ’ s complaint about the lack of legal framework for legal gender recognition and will be analysed accordingly. Article 8 of the Convention reads as follows :
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. Applicability of Article 8 of the Convention
37. In the instant case the applicant formulated his complaints under Article 8 of the Convention, and the Government did not dispute the applicability of that provision.
38. The Court sees no reasons to hold otherwise. The right to respect for private life under Article 8 of the Convention extends to gender identity, as a component of personal identity. This holds true for all individuals, including transgender people, like the applicant, who have not undergone gender reassignment treatment, or who do not wish to undergo such treatment (see A.P., Garçon and Nicot v. France, nos. 79885/12 and 2 others, § § 92-94 ECHR 201 7 (extracts)).
39. The “private life” aspect of Article 8 of the Convention is therefore applicable to the present case, which concerns the applicant ’ s application for the sex/gender marker to be altered in the civil status register.
2. Non-exhaustion of domestic remedies
40. The Government submitted that the impugned proceedings were still ongoing and that no conclusion could be drawn as to their outcome. They stated that : “ [It ] is legally possible that the proceedings could end with a decision on the merits ... it would be wrong to consider ahead of time that the final outcome of the case could be unsuccessful”. For this reason, they maintained that the application was premature.
41. The applicant contested the Government ’ s objection. The impugned proceedings, which concerned his request to have his sex/gender marker changed in the civil status register from a female to a male one, had lasted for more than seven years and there was no indication that they would be completed in the near future. It was therefore for the Court to decide on the case.
42. The general principles regarding the exhaustion rule under Article 35 § 1 of the Convention are set out in Vučković and Others v. Serbia (see Vučković and Others v. Serbia (preliminary objection) [GC] (nos. 17153/11 and 29 others, §§ 70-77, 25 March 2014, with further references, in particular to Akdivar and Others v. Turkey, 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV).
43. In that context, the Court finds it appropriate to reiterate that according to the “generally recognised rules of international law” there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his or her disposal (see Vučković and Others, cited above, § 73 and Akdivar and Others, cited above, § 67 ). The excessive length of the domestic proceedings may constitute a special circumstance which would absolve the applicants from exhausting the domestic remedies at their disposal (see M. and M. v. Croatia, no. 10161/13, § 174, ECHR 2015 (extracts), and Šorgić v. Serbia, no. 34973/06, § 55, 3 November 2011).
44. Turning to the present case, the Court notes that the impugned proceedings which the applicant instituted in order to obtain redress in regard to the situation of which he complains before it have so far been pending for more than seven years and it is not yet possible to predict when they will come to an end. It should be observed that the protracted examination of the applicant ’ s claim and the failure to obtain legal recognition of the preferred gender have, as stated by psychologists (see paragraphs 2 2 above), is having long-term negative consequences for the applicant ’ s mental health.
45. The Court therefore considers that, given the nature and the particular situation of the applicant, who faces a continuing situation highly prejudicial to his private life, he cannot be expected to await any longer the outcome of the impugned proceedings (see X v. Germany, no. 6699/74, Commission decision of 15 December 1977, Decisions and Reports (DR) 11, pp. 16 and 24).
46. Accordingly, the Court rejects the Government ’ s preliminary objection on the grounds of non-exhaustion of domestic remedies.
3. Non-compliance with the six-month rule
( a ) The parties ’ submissions
47. As regards the applicant ’ s complaint about the alleged lack of clear legal procedures for gender recognition, the Government maintained that the applicant had not complied with the six-month time-limit, which according to them had started to run when he had become aware or ought to have become aware of the circumstances complained of. According to the Government, that had been long before the application had been submitted before the Court – namely, before the applicant had instituted the impugned domestic proceedings.
48. The applicant contested the Government ’ s objection, arguing that, notwithstanding the lack of clear regulation of the gender recognition procedure, the applicable legislation (paragraphs 23, 25 and 29 above) laid a sufficient legal basis for his request to be decided on the merits. Furthermore, the Convention was directly applicable and the domestic courts could have relied on the relevant case-law of the Court. Lastly, he maintained that he had been required to try the available domestic remedies before applying to the Court.
49. The six-month time-limit under Article 35 § 1 of the Convention marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible As a rule, the six ‑ month period runs from the date of the final decision in the process of the exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the applicant gaining knowledge of such acts or their effect on or prejudice to him or her. Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became aware or ought to have become aware of those circumstances (see El- Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 135 and 136, ECHR 2012 ).
50. The Court observes that the Government ’ s argument that the applicant ’ s complaint had been submitted out of time consisted of maintaining that the six-month time-limit should be regarded as having started to run when the applicant first became aware or ought to have become aware of the circumstances complained of, which according to them had been before he had instituted the impugned proceedings. In so far as this argument may be understood as contesting the effectiveness of the remedy used by the applicant, it is seemingly in contradiction with their submissions that the impugned proceedings could not be considered futile ahead of time (see paragraph 40 above). Be that as it may, the Court does not accept the Government ’ s objection under this head for the following reasons.
51. It is to be noted that the applicant was not prevented in any practical manner from bringing his claim to have his sex/gender marker changed in the official civil-status records before the national authorities. Indeed, the case was litigated up to the Administrative Court, which ruled twice in the proceedings by upholding the applicant ’ s claim and remitting the case for fresh examination by the administrative authorities. Initially, the authorities ’ findings were based on section 22(2) ( the former section 23) of the Act and concerned the absence of documentary evidence attesting to the factual change of sex. After the applicant ’ s circumstances had changed, the Registry commissioned a medical examination of the applicant exclusively for the purposes of the impugned proceedings (see paragraphs 15 and 16 above). It was only in the last decision of 28 February 2018 – namely more than six and a half years after the introduction of the applicant ’ s application – that the Registry declared that it did not have authority to decide on the claim. That decision is not final, since appeal proceedings are still pending.
52. The above demonstrates, in the Court ’ s opinion, the efforts of the national authorities, including the courts, to decide on the applicant ’ s claim and set the relevant legal principles regarding issues which, in the absence of any prior domestic jurisprudence, appear to have been novel when submitted for adjudication. The Court notes that the Administrative Court has accepted claims identical to those of the applicant in the instant case, admittedly under different factual circumstances, but decided under the same law (see paragraph 30 above).
53. Accordingly, the Court considers that it was not unreasonable that the applicant decided to pursue the impugned remedy in order to have his position settled at domestic level before submitting his complaint to the Court. This is in line with the principle of subsidiarity, according to which it is best for issues to be resolved, in so far as possible, at the domestic level. It is in the interests of the applicant, and the effectiveness of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention (see El Masri, cited above, § 141).
54. In such circumstances, and having regard to the diligence and interest displayed by the applicant in the proceedings, the Court rejects the Government ’ s objection that the applicant ’ s complaint was introduced out of time.
55. No other grounds for declaring the application inadmissible having been established, it must therefore be declared admissible.
56. The applicant maintained that the procedure to have the sex/gender marker in the civil status register changed was not regulated by law nor was there any established judicial practice in respect of the matter. The law did not differentiate between the rectification and alteration of entries in the public records. The case at issue confirmed that there was no “quick, transparent and accessible” legal gender recognition procedure in the respondent State. Furthermore, the authorities had arbitrarily created and imposed on him a surgery requirement. Relying on the case of A.P., Garçon and Nicot (cited above), the applicant submitted that the imposition of that requirement had been in violation of the right to respect for private life under Article 8. That case had set a precedent that transgender people should not be forced to choose between their right to bodily integrity and the right to have their gender identity legally recognised. Contrary to that principle, he had been required to undergo genital surgery even though ( i ) there had not been a statutory basis and (ii) it had not been justified.
57. The Government submitted that rectifications and changes of entries in the civil status register were regulated by the Act. Under section 22(2) of the Act, the Registry had authority to rectify errors in the civil status register by its own decision and to change an entry by implementing a decision of other relevant bodies. They contested the applicant ’ s arguments that he had been required to undergo full reassignment surgery in order to have his sex/gender marker changed. However, there was no possibility to have his sex/gender marker, unlike his personal name, changed on the basis of self-determination or contrary to decisive biological characteristics. Even assuming that such a change was legally possible, it would cause many practical problems for both the people concerned and others. The Government stated that the terms and conditions for legal gender recognition varied among the States. In the absence of a European consensus on the conditions under which the sex/gender marker could be changed in official records, the States should enjoy a wider margin of appreciation to regulate the matter and to strike a fair balance between the interests of an individual and the general interest.
2. Observations of the third- party interveners
58. The third-party intervener submitted that member States diverged significantly in their approach to issues of legal gender status and changes thereto. The Court recognised, accordingly, that they enjoyed a wide margin of appreciation in regulating those issues. There were further diverse medical and psychiatric opinions on the nature of transsexualism and surgical treatment. Accordingly, Article 8 could not be construed as dictating that a single practice be followed by the member States on questions of administrative procedure pertaining to changes to legal gender status. The requirement of “complete sex reassignment surgery” also had various practical implications and could not accordingly be seen as simply an arbitrary and baseless requirement under law.
59. For those reasons a cautious approach should be applied to requests for legal recognition of changes to perceived identity without any medical or surgical treatment. Acceptance of such claims would introduce significant uncertainty and would imply that States would be required to officially recognise changes solely on the basis of self-determination.
60. ADF concluded that when a case, such as the instant one, raised fundamental questions regarding definitions which had ramifications in the spheres of ethics, psychology and medical science, the States should enjoy wide discretion in defining rules aimed at striking a balance between the competing public and private interests at stake. The way in which States addressed transgender issues depended on the specific features of the domestic environment.
(b) Joint observations of Transgender Europe (TGEU), the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), Trans Network Balkan (TNB) and Subversive Front
61. The interveners pointed to the relevant case-law of the Court with respect to transgender individuals ’ rights to have their gender identity legally recognised. They referred to the comparative information about the situation in different Council of Europe member States ( see paragraph 35 above), which given the recent developments, indicated a clear trend towards greater autonomy of individuals in legal gender recognition procedures. The reforms that were underway reflected the fact that the European standard of “quick, transparent and accessible” legal gender recognition procedures “based on self-determination”, as postulated in the Council of Europe documents (paragraphs 3 1 -3 3 above), were implemented in practice. Referring to the case of A.P., Garçon and Nicot (cited above) they submitted that legal gender recognition should not be dependent on gender reassignment surgery or hormonal treatment.
62. They submitted that the lack of statutory regulation of legal gender recognition procedures in the respondent State created a state of uncertainty for transgender people, which mitigated in favour of inconsistent practice being created and applied by the domestic authorities. Furthermore, there was limited access to trans-specific health care, which impeded any medical treatment (not available in the respondent State) in order to have gender identity recognised.
(a) Preliminary remarks : Whether the case concerns interference or a positive obligation
63. The Court has previously held that while the essential object of Article 8 is to protect individuals against arbitrary interference by public authorities, it may also impose on a State certain positive obligations to ensure effective respect for the rights protected by Article 8. This Article imposes on States a positive obligation to secure to their citizens the right to effective respect for their physical and psychological integrity. This obligation may involve the adoption of specific measures, including the provision of an effective and accessible means of protecting the right to respect for private life. Such measures may include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of these measures in different contexts (see Hämäläinen v. Finland [GC], no. 37359/09, §§ 62 and 63, ECHR 2014 ).
64. The Court observes that the applicant ’ s grievances concern the alleged lack of a regulatory framework for legal gender recognition and the alleged requirement that such recognition be conditional on complete sex reassignment surgery.
65. Having regard to the facts of the case and the parties ’ submissions, the Court considers that the primary question to be determined is whether or not the respondent State failed to comply with its positive obligation to put in place an effective and accessible procedure, with clearly defined conditions securing the applicant ’ s right to respect for his private life, as defined above (see paragraphs 38 and 3 9 above). The answer to that question would be determinative for the other aspect of the applicant ’ s complaint – namely that he was allegedly compelled to undergo complete gender reassignment surgery in order to have his sex/gender marker changed in the birth register. This is so given the fact that that aspect concerns a specific requirement which allegedly was imposed by the authorities to be fulfilled by the applicant, as a pre - operative transsexual who has undergone partial surgery.
(b) Compliance with the State ’ s positive obligation
66. The relevant Convention principles have been summarised in the Court ’ s judgment in the case of Hämäläinen (cited above, §§ 65-6 7 ).
67. Turning to the present case, the Court notes that there is no provision in the domestic law that explicitly allows the alteration of a person ’ s sex/gender marker in the civil status register, unlike the right to have a person ’ s personal name changed ( see paragraphs 26 - 28 above). Furthermore, the legislation does not impose any terms and conditions to be fulfilled and procedures to be followed. That was confirmed by the Administrative Court (see paragraph 13 above). Similarly, no provision clearly specifies the body that has jurisdiction to decide such a request (unlike a request for a change of a personal name – see paragraph 28 above). That the respondent State has no regulatory framework regarding legal recognition of gender reassignment was confirmed by relevant international fora (see paragraphs 35 and 61 above) and acknowledged by the Court in its analysis of comparative law ( Hämäläinen, cited above, § 32). The same appears to have been acknowledged in the impugned proceedings (see paragraphs 1 3, 1 5 and 1 6 above).
68. Notwithstanding the above, the Court will examine the Government ’ s argument that the Act was to be considered as having laid a sufficient and effective legal basis for the issue at stake. In this connection the Government maintained that the Act – in particular section 22(2 ) ‑ permitted the rectification and modification of entries in the civil status register and vested the Registry with authority to decide on both matters in two different ways : errors could be rectified directly by the Registry and entries could be altered on the basis of a separate decision by a body with the relevant authority, as a prerequisite for the change sought. Since the applicant sought to change the gender that had been assigned at birth and recorded as such in the birth register, it would appear that it fell to be examined under the latter procedure described above. That was the approach applied by the Registry, which refused on two occasions to change the applicant ’ s sex/gender marker in the birth register from a female to a male one owing to the absence of documentary evidence attesting to his altered sex (see paragraphs 10 and 17 above). However, the Registry did not specify the nature of that evidence, despite it having lodged requests with the relevant authorities for information in this respect (see paragraph 16 above). The Administrative Court referred to that omission in remitting the case for reconsideration (see paragraph 13 above). The Court attaches weight to the fact that the Government did not present any evidence that those issues, including the procedure for obtaining the relevant evidence, were regulated by law or that there was established judicial practice regarding the matter. In so far as it may be inferred from the Government ’ s submissions that a judicial declaration by the Administrative Court acknowledging the applicant ’ s new gender identity could be relied upon by the Registry in making the change sought (see paragraph 30 above), it is to be noted that that court did not decide on the applicant ’ s case on the merits, even though it had examined it on two occasions (see paragraphs 13 and 20 above). Lastly, it is not without relevance that the Registry, in its last decision of 28 February 2018 – namely six and a half years after the applicant had initiated the impugned proceedings – declared that it did not have authority to decide on the applicant ’ s claim (see paragraph 22 above).
69. All the above is sufficient for the Court to conclude that the current regulatory framework in the respondent State on legal gender recognition leaves a number of important questions unanswered. Among them is the existence and nature of any requirement that a claimant needs to fulfil in order to have the sex/gender marker in the official records changed. As noted in paragraph 67 above, the domestic law does not address that issue. Furthermore, it was not argued – and the Court was not presented with any evidence – that there was any (let alone settled) jurisprudence specifying any such requirement. The applicant argued that he had been compelled to undergo complete gender reassignment surgery in order to have the sex/gender marker changed in the birth register. Assuming that the early findings of the administrative authorities may have pointed to such a conclusion, the Court observes that no definitive position was taken on the matter. It is to be noted that the applicant ’ s claim to be granted a new male sex/gender marker was not finally dismissed, and the impugned proceedings are still pending (see, conversely, Hämäläinen, cited above, § 64). Accordingly, and having regard to the arguments stated above, any conclusion as to whether the applicant, as a pre-operative transsexual who has undergone partial surgery, will be allowed to have his preferred gender legally recognised would veer precariously close to speculation.
70. The Court finds that the circumstances of the case reveal legislative gaps and serious deficiencies that leave the applicant in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his identity. As stated above (see paragraphs 22 and 4 4 ), the protracted examination of the applicant ’ s claim, for which the national authorities bore sole responsibility, is having long-term negative consequences for his mental health. The foregoing considerations are sufficient to enable the Court to conclude that the current legal framework in the respondent State does not provide “quick, transparent and accessible procedures” for changing on birth certificates the registered sex of transgender people (see paragraphs 3 1 and 32 above).
71. In the light of the above considerations, the Court concludes that there has been a violation of Article 8 of the Convention on account of the lack of a regulatory framework ensuring the right to respect for the applicant ’ s private life (see paragraphs 38 and 39 above).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
72. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
73. The applicant claimed 23,650 euros (EUR) in respect of pecuniary damage. That figure covered loss of income (given his limited employment opportunities) and the cost of medical examinations and past (see paragraph 1 4 above) and possible future interventions (complete gender reassignment surgery ). Copies of invoices were submitted in support. He also claimed EUR 10,500 in respect of non-pecuniary damage for the stress, anxiety, fear and humiliation suffered. In this connection he submitted a psychiatric report of 4 November 2017 which reiterated earlier findings regarding the negative consequences of the ongoing proceedings on his psychosocial and mental health (see paragraph 2 2 above).
74. The Government contested these claims as unsubstantiated and excessive and submitted that there was no causal link between the pecuniary damage claimed and the alleged violations.
75. The Court does not discern any causal link between the violation found and the pecuniary damage claimed; it therefore rejects this claim. On the other hand, it awards the applicant EUR 9 ,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.
76. The applicant did not claim the reimbursement of any costs and expenses. Accordingly, the Court does not award any sum in this respect.
77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Declares, by a majority, the application admissible;