On 1 December, the European Court of Human Rights (ECtHR) ruled in favor of three transgender men in their case against Georgia and agreed that Article 8 – right to respect for private and family life – of the European Convention on Human Rights was violated.
The Court has ordered Georgia to pay each of the applicants EUR 2,000 in respect of nonpecuniary damage and EUR 9,812.86 to the third applicant in respect of costs and expenses.
In this case, – A.D. and Others v. Georgia – the three transgender men petitioned the court on the grounds that they were unable to obtain legal recognition of their gender because they had not undergone sex reassignment surgery.
Georgia’s Law on Civil Status Acts, says in Article 78 (g), that to alter civil records defining gender, a change of sex is required. Notably, it does not specify what constitutes a change of sex.
In its ruling, the Court noted that “despite the fact that the right to have one’s sex changed in civil status records had existed in Georgia since 1998, there had not apparently been one single case of successful legal gender recognition.”
It remarked that the “imprecision of the current domestic legislation undermined the availability of legal gender recognition in practice, and the lack of a clear legal framework left the domestic authorities with excessive discretionary powers, which could lead to arbitrary decisions in the examination of applications.”
“Such a situation was fundamentally at odds with the respondent State’s duty to provide quick, transparent, and accessible procedures for legal gender recognition,” the Court underscored.
Grounds for Complaints
The first and second applicants in the case began the process of changing their civil records by officially changing their names to traditionally male ones after filing the necessary paperwork on 29 May 2014 and 22 January 2015, respectively, with the Civil Status Agency. Shortly after, both were also issued medical certificates by psychologists in Tbilisi which diagnosed them with “gender identity disorder (transsexualism)”.
On the basis of that diagnosis, they requested that the Agency change their sex/gender marker in civil status records from female to male but were rejected by the Agency because they had not undergone medical sex reassignment procedures.
Although it was revealed in consequent court proceedings that one of the applicants had undergone hormonal treatment and had a double mastectomy, the Tbilisi City Court nevertheless, rejected both of their applications on the basis of Article 78 (g) of the Civil Status Acts. Both of their attempts came to an end when the Supreme Court rejected their appeals on 24 November 2016 and 9 March 2017, respectively.
The third applicant, who started receiving hormonal treatment shortly after deciding to change his gender, went through a more extensive appeals process both with the Agency and within the judicial system.
The Agency registered the applicant under a new traditional male name in place of the name given to him at birth on 15 February 2011. Later, on 9 February 2015, he submitted an application with the Agency under Article 78 (g) to change his gender in the civil status records from female to male. In support of his application, he submitted the same diagnosis of “gender identity disorder (transsexualism),” which was also rejected by the Agency as grounds for changing civil records.
On 8 July 2015, he appealed against the Agency’s decision on the grounds that Article 78 (g) “should not be interpreted as requiring a change of sex characteristics and that the fact that the applicant considered himself to be a man, which was further confirmed by the medical opinion of 31 October 2014, coupled with the hormonal treatment which he had received and the changes in his “social behavior, appearance, and style of dress”, should be sufficient for the purposes of the above-mentioned legal provision.”
Two additional appeals against the Agency’s decision were also rejected. Ultimately, the third applicant also chose to join the application in the ECtHR after failing to obtain a favorable ruling from the Supreme Court.
In its decisions, the Agency agreed that existing domestic law in Georgia does not define exactly what constitutes a “change of sex.” Still, the authority maintained that it would be necessary for applicants to submit a medical certificate showing a change in biological and/or physiological sex characteristics.
- 03/11/2022 – ECtHR Releases Mamaladze v. Georgia Ruling