X vs. the former Yugoslav Republic of Macedonia: Right of private and family life

Analysis by Igor Spirovski on the ECtHR judgement "X vs. the former Yugoslav Republic of Macedonia" (application no. 29683/16).

In this case, the applicant is a transgender person who has not yet committed a sex change, who has unsuccessfully conducted a procedure in the Republic of Macedonia for changing the data on the gender in the birth register for more than 6 years. The Court concluded that his right to respect for private life under Article 8 of the Convention had been violated, including personal and gender identity, due to the lack of a regulatory framework for the legal recognition of his gender identity, the respondent State being in breach of its positive obligation under Article 8 of the Convention.

The facts
The applicant, X., was born in 1987 as a female person. In 2010, in a specialist medical facility in Belgrade, Serbia, he received a diagnosis that he was "transsexual" and started hormonal therapy, preparing for a surgical operation to change sex in male.
In June 2011, he submitted a request for changing his personal name and surname in the Republic of Macedonia, which he was granted, thus obtaining a male name and a new identity card. However, the data for the sex and the unique ID number remained unchanged.
In July 2011, he applied for a change of the sex data. The Civil Status Registry rejected his request because he did not provide evidence from which it can be established that the applicant changed sex. The applicant stated that the law did not contain provisions that would prescribe such conditions and that the request was therefore rejected by law. His appeal to the ministry was rejected.
After the applicant's complaint, the Administrative Court in June 2013 annulled the second instance decision and remitted the case for reconsideration, noting that the second instance decision did not specify what the relevant evidence was, based on which the administrative body could have made a decision on the applicant's request.
The same month, the applicant performed a mastectomy (removal of the breasts) and continued hormonal therapy.
In the remitted procedure, the Civil Status Registry requested an opinion from the Institute of Forensic Medicine, which concluded that, although the operation of the sexual organ has not yet been carried out, the applicant shows clear male characteristics and that the claim should be accepted. The Ministry of Health, in turn, pointed out that there are no State regulations on this issue, but that prior medical intervention should be taken into account.
The applicant's request was rejected for the second time because the Registry did not obtain evidence that the applicant's sex change actually occurred. The Ministry of Justice rejected the applicant's appeal.
The Administrative Court annulled the second instance decision and again remitted the case for reconsideration because the defendant authority did not provide the files in the case. Subsequently, the Registry rejected the applicant's request, this time because it declared that it was not competent. The ministry confirmed this decision. The procedure before the Administrative Court against the second instance decision is pending.

The Law
The applicant complained that, due to the lack of a legal framework in the Republic of Macedonia for the legal recognition of his gender identity, as well as because he was required to perform a surgical operation of the sexual organ as a prerequisite for the recognition of his gender identity, his right of Article 8 of the Convention was violated. Article 8 reads as follows:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. The public authority must not interfere with the exercise of this right, unless such interference is provided for by law and if it is a measure of interest in the state and public security, the economic well-being of the country, the protection of the order and the prevention of criminal offenses , the protection of health and morals, or the protection of the rights and freedoms of others in a democratic society.

Admissibility
The Court first makes an important remark when it recalls that the right to respect for family and private life under Article 8 of the Convention extends to gender identity as a component of personal identity and that this applies to all individuals, including transgender such as the applicant , who have not undergone a sex change operation or who do not wish to undergo such a surgical operation (see AP, Garçon and Nicot v. France, Nos. 79885/12 and 2 others, §§ 92-94 ECHR 2017 (extracts)). Hence, the aspect of private life of Article 8 of the Convention is applicable in the present case, which refers to the applicant's request to change the gender mark in the registry.

Merits
The Government states that according to Article 22 of the Law on Registration, there is a possibility for rectification of error or for changing data. They deny that the applicant was required to perform a full surgical operation, but that the change of data cannot be performed solely on the basis of self-determination of a person or contrary to decisive biological characteristics.
(a) Preliminary remarks: whether the case concerns interference or a positive obligation?
The Court has previously held that although the primary object of Article 8 is to protect individuals from arbitrary interference by the public authorities, it may also impose on the State certain positive obligations in order 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).                   
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.
Taking into account the facts of the case and the allegations of the parties, the Court considers that the primary question to be answered is whether or not the respondent State failed to fulfill its positive obligation to establish an effective and accessible procedure, with clearly defined conditions for securing the right to the applicant's respect for his private life. The answer to that question will be decisive for the other aspect of the applicant's complaint-namely, that he was allegedly forced to undergo complete surgical sex-change surgery in order to alter his gender status in the birth certificate. This is so given  the fact that this aspect refers to a specific condition allegedly imposed by the authorities to be fulfilled by the applicant as a preoperative transsexual who underwent partial surgical operation.
(b) Compliance with the State’s positive obligation
The relevant principles of the Convention are summarized in the judgment of the Court in Hämäläinen v. Finland.
Turning to the present case, the Court notes that there is no provision in domestic law that explicitly permits the alteration of gender data in the birth register, in contrast to the right to change person's personal name, if that has changed. Furthermore, the legislation does not impose any conditions and procedures that need to be followed. It is confirmed by the Administrative Court. Similarly, there is no legal provision that clearly determines the body having jurisdiction to decide on such a request (in contrast to the request for a change of personal name). That the respondent State does not have a regulatory framework regarding the legal recognition of gender change has been confirmed by relevant international fora, ascertained by the Court in its analysis of comparative law (Hämäläinen, cited above, § 32). The same seems to be confirmed in the disputed proceedings.
Notwithstanding the foregoing, the Court examined the Government's argument that it was to be considered that the Law on the Register provided sufficient and effective legal basis for the issue concerned, namely that Article 22 paragraph 2 of the Law allowed the correction and modification of the data in civil status with the competence of the Civil Status Register to decide on both issues in two different ways: errors can be corrected directly by the registrar, and the data can be changed on the basis of a separate decision by the body in the Authority as a prerequisite for the required change. Given that the applicant attempted to alter the gender record that was recorded as such in the birth registry, it appears that his request should have been decided in the second way. It was the approach applied by the registrar who refused to change the data on the gender of the applicant in the female register on two occasions due to the absence of documentary evidence confirming his altered gender.
However, the Civil Status Registry did not evaluate the nature of that evidence, despite submitting requests to the competent authorities for information in this regard. The Administrative Court referred to that omission on the first return of the reconsideration case. The Court attached importance to the fact that the Government did not present any evidence that these issues, including the procedure for obtaining relevant evidence, were regulated by law or that there had been case-law on this 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 it should be noted that that court did not rule out the merits of the applicant's case, although he considered it on two occasions and returned the case to re-examination to the administrative authority. Finally, it is not irrelevant that the Authority, by its subsequent decision of 28 February 2018 - six and a half years after the applicant initiated the impugned proceedings - stated that it was not competent to rule on the applicant's request.
The Court notes that the foregoing is sufficient to conclude that the current regulatory framework in the respondent State for the lawful recognition of the gender leaves a number of important issues unanswered. Among them is the existence and nature of any condition the applicant had to fulfill in order to change the gender mark in the official records. As noted above, domestic law does not address this issue. Furthermore, it was not argued - and the Court was not presented with evidence - that there was any (let alone settled) case-law that would specify such conditions. The applicant claimed that he was forced to undergo complete surgery to change sex to change sex data in the birth certificate. Even assuming that the early findings of the administrative authorities may have suggested such a conclusion, the Court notes that no definite position on the matter was taken during the whole procedure. It should be noted that the applicant's request to change the data on his sex is not yet finalized and the impugned proceedings are still pending. Accordingly, and bearing in mind the arguments set out above, any conclusion as to whether the applicant, as a preoperative transsexual, who underwent partial surgical surgery, would be legally recognized by his preferred sex, would be very close to speculation.
The Court finds that the circumstances of the case reveal legal gaps and serious defects that put the applicant in a situation of disturbing uncertainty vis-à-vis his private life and the recognition of his identity. As stated above, the protracted consideration of the applicant's claim, for which national authorities bear sole responsibility, has long-term negative consequences on his mental health. For the Court it was sufficient 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.
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 a lack of a regulatory framework that ensures the right to respect for the applicant's private life.

The significance of the judgment
First of all, it is important that the Court, for good reason and on its own initiative, recalls that the right to respect for the family and private life of Article 8 of the Convention extends to a gender identity as a component of personal identity and that this applies to all individuals , including transgender persons, such as the applicant, who have not undergone a sex change operation, or who do not wish to undergo such a surgical operation. This is important in particular because at certain stages of the proceedings the authorities rejected the applicant's request by referring precisely to the fact that there was no evidence that he had performed a surgical change of sex. Also, having in mind that the Administrative Court in two other cases had rescinded the claims of two other persons who have already carried out such an operation, it indicates that this fact was a particular obstacle for the applicant to exercise his right to change the gender mark. This only shows that State authorities seem to have no general insight into the case-law of the Court that addresses this particular issue.
Secondly, in determining the violation of the right to respect for the applicant's personal identity, a clear perspective is opened for the re-opening (or even continuation) of the procedure in his case in which the courts, regardless of the dynamics of certain changes to the Law on the registry imposed by this judgment, will be able, and in my opinion they will be obliged, with adequate application of the Court's views in this judgment (but also the other referred to therein) to accept his complaint, annul the acts of the administrative bodies and  secure legal recognition of his gender identity and consequently to provide a change of gender mark in the public registry. It will certainly not be difficult for them, all the more that in 2017, in different  circumstances, they did the same on the basis of the same "empty" Law.
Thirdly, the judgment is extremely important for the rights and treatment of transgender people and raising the level of the obligation of the State to provide "fast, transparent and accessible procedures" for changing their data in the registry. We can only regret that, contrary to the numerous international documents listed in this judgment, and corresponding State’s obligations, our State were not able to meet these needs of citizens in line with European standards. This judgment guarantees that, from now on, no transgender person will face such an unfavorable treatment as the applicant. Courts must provide it in an absolute sense.
Finally, this judgment affirms in a special way the position of the Court that the term "law" means at the same time written law and other legal regulations, but also the case-law, especially when it comes to the "settled", stable case-law, which provides for the individuals, like written law or in its absence, clarity and foresee-ability as to how the law will treat their actions or their status. In this case, the Court, already in the section on "domestic relevant law", found it appropriate to point out Article 8 of the Law on Courts, which stipulates that the court "cannot reject a request for exercising a certain right owing to a lacuna in the law and is obligated to decide upon it, by reference to the general principles of law, except where expressly prohibited by law.” It is beyond doubt that the Administrative Court could have decided the case in accordance with this article of the Law and in accordance with the standards of international law and the jurisprudence of the European Court of Human Rights. The Court notes that the facts of this case indicate that there had been attempts by the authorities and the courts to make a decision on the applicant's claim and "to lay down the relevant legal principles on an issue that, in the absence of any prior case-law, was new at the time of its submission for adjudication." It therefore assessed that the applicant had reasonably hoped to be able to obtain a decision in those proceedings. Such recognition of court decisions and practice as being relevant for the rights, even when the law is silent, is an important incentive for our courts to enter the immediate protection of human rights and freedoms by referring to the views of the European Court of Human Rights. The latter, in fact, is already an explicit obligation for judges according to the amendments to Article 18 of the Law on Courts (although that obligation, from the point of view of the constitutional law, exists without that provision of the Law!)