Legal recognition of gender identity in Republic of Macedonia
Analysis by Konstantin Bitrakov on the Decision UI.br.16 /2017 delivered by the Administrative Court of the Republic of Macedonia.
Introductory remarks
This analysis is focused on the Administrative Court’s (hereinafter: Court) Decision from the 25th of September 2017, archived under no. UI.br.16/2017 (hereinafter: Decision). With this Decision the Court (1) determined that X has undergone a sex-reassignment surgery, (2) annulled X’s Unique Master Citizen Number (hereinafter: UMCN), and (3) ordered the Office for Management of Registers of Births, Marriages and Deaths as well as the Ministry of Interior Affairs to undertake all steps necessary so that X’s new sex is entered into the civil registers (i.e. the data in the registers to be changed) and so that this individual receives a new UMCN.[1] Bearing this in mind, the analyzed Decision is a mile-stone in the Macedonian judicial practice, an act which brings the national case-law a step closer to the one of the European Court of Human Rights (hereinafter: ECHR) when speaking of the principles of equality and non-discrimination, the right to private life, and the legal recognition of gender identity (although this recognition is limited to the cases where sex-reassignment surgery has taken place as to uniform the persons's sex and gender). The adoption of this Decision was covered not just in the Macedonian media but also abroad, where it was pointed out as a positive example for the trans-persons’ protection in the country.
Background and facts of the case
It is quite
likely that the first question a person analyzing the Decision will ask is why
was it necessary? What is the background of this case and why did X find that
an administrative dispute against the respective authorities should be
initiated? The answer lies in the Macedonian lacunae legis, or better said in the lack of procedural roles which
would enable for legal recognition of the
gender identity.
In order
for it to be coherent, the explanation must start off with few definitions. Let
us begin with the one of gender identity.
Gender identity is the personal sense of oneself as male or female. This
perception may or may not correspond with the person’s sex. Thus, we are
speaking of a fluid, inconstant category – a person’s gender identity might
change over time. Second is the definition of gender expression. This concept is related with the person’s
behavior, i.e. it is the manifestation of one’s gender identity in society.
Having that said, the person’s gender identity and gender expression might not
match. The third concept to be defined is the one of sex. It is “the sum of the structural, functional, and behavioral
characteristics of organisms that are involved in reproduction marked by the
union of gametes and that distinguish males and females” (Merriam-Webster).
Finally, we come to the concept of legal
recognition of gender identity. It is the process in which the data in the
official public records is changed so that it reflects the person’s perception
of oneself as male or female. Such legal recognition exists only when the
respective country’s legislation allows for change of: (1) name; (2) sex mark
in the public records and the official identification and (3) UMCN. In other
words, the legal system recognizes the person’s gender identity by allowing
him/her to change its relevant personal data in the official records.
Having that
said, all European countries allow persons to change their name (first and
last). The procedures are fairly simple and almost no evidence is needed.
However, the situation is not the same when it comes to the personal ID numbers
(like the UMCN) or the sex mark in the official documents. Speaking of these
two latter prerequisites for legal recognition of gender identity, all European
countries can be divided in three groups. The first one is composed of the
liberal countries, i.e. those where every person can change his personal ID
number or the sex mark regardless whether he/she has undergone a
sex-reassignment surgery. The second group is consisted of the conservative
countries. They, too, allow persons to change the sex mark in their documents
as well as their personal ID numbers, however, this can only be done if there
has been a sex-reassignment surgery and/or sterilization. The third group, finally,
comprehends all those countries where there is no legal recognition of gender
identity at all. [2] To put it simply, these are the countries where the legal system contains no
rules for change of personal ID numbers or sex marks in the official registries.
It is considered that the category of “sex” is a permanent one, while the
category of “gender” does not even exist in the legislation; thus neither the
substantive nor the procedural rules stipulate how an individual can be issued
with new documents where the mark of sex is changed or and/or a new personal ID
number. Among these countries is also the Republic of Macedonia. If we exempt
the first two groups of countries – where the debate which of the two
approaches (sex-reassignment as a condition or not) is right is quite advanced
– from our analysis, we would come to the conclusion that the legislation in
the third group of countries is vividly undeveloped. Namely, these countries do
not follow the latest scientific developments, thus making their legal systems
outdated vis-à-vis the possibilities
the modern medicine offers. It makes absolutely no sense at all that
individuals are allowed to change their sex (by receiving hormones and by
undergoing a sex-reassignment surgery with many medical examinations before and
after it), but are not allowed to register
the change in the public records. In fact, even if these sex-reassignment
surgeries are not allowed in a certain country, it should still allow persons
to receive new personal ID numbers and documents if they have legally undergone
such a surgery abroad.
Thus, we
reach the background of the case, namely the reason why the Court’s Decision
was necessary. The official registry had one sex mark when it comes to X,
however the sex and the gender of this individual did not correspond. For that
reason, upon turning 18, X had gone to a medical facility abroad and had asked
for a sex-reassignment. The procedure had been quite long since it involved not
just a surgery, but also a hormonal therapy and regular examinations. After a
year-and-a-half, X finally had finally gotten a new sex, such which matches the
gender. Therefore, right after the return in the Republic of Macedonia X filed
a request to the Office for Management of Registers of Births, Marriages and
Deaths[3] asking it to correct the data in the civil (or public) registry, that is to
change the sex mark. Unfortunately, the request was not taken into
consideration and was dismissed. The Office for Management of
Registers of Births, Marriages and Deaths found that it has no legal
jurisdiction to decide on such a case, or better said that the laws regulating
its work do not provide legal grounds for changing the sex mark in the public
registries. X appealed against this decision to the Ministry of Justice,
however the decision remained the same. The Ministry of Justice reached a
second-instance with which it rejected X’s appeal. The crucial explanation was
that “[t]he legal system of the Republic of Macedonia does not regulate this
issue”. X had therefore no other alternative but to initiate an administrative
dispute before the Court, more precisely to file a claim against the
second-instance decision reached by the Ministry of Justice. Finally, the
Court’s decision was positive. The Court’s reasoning was two-fold. Firstly,
that the Ministry of Justice did not determine the statements of facts properly
and, secondly, that two legal acts were not applied properly. Those were the
Law on Registers of Births, Marriages and Deaths[4] and the Law on General Administrative Procedure.[5] Respectively, the Court annulled the second-instance decision of the
Ministry of Justice. As the Ministry of Justice did not respect the Court’s
decision and did not decide over the case again in more than three months, X
filed a request on the basis of Art. 53, para. 1 of the Law on Administrative
Disputes. [6] Since this effort for X to receive a decision was also unsuccessful, (s)he
filed another complaint to the Court, this time asking it to decide on the
merits of the case and to reach a decision which would replace the decision of
the Ministry of Justice entirely. Finally, approximately one year later, the
Court reached the Decision which is analyzed herein. It decided in
full-jurisdiction.
The Decision and its relevance
It is vivid, bearing in mind its background, that the analyzed Decision
is indeed important when speaking of the Macedonian judicial case-law. By
reaching it the Court fulfilled the significant lacunae legis in Macedonia, therefore bringing about a more
effective legal protection for the transgender persons. What is also especially
significant is that this Decision is not an annulling one (which would mean
that the final decision on the merits would again be adopted by the
administration), but one reached in full-jurisdiction. The administrative
authorities are obliged to act upon it, as the Court addresses them and points
out which necessary steps should they take. As it was said in the introductory
remarks, the Court determined that X has indeed reassigned her/his sex, but it
also annulled his/her UMNC and obliged the competent administrative authorities
to effectively note the change in the registers and issue a new one. The Court
even pointed them to the relevant by-law where the relevant procedural rules
were set out.[7] X was finally able to have its sex and gender identity harmonized.
One might therefore ask if the Court’s decision is legal, bearing in
mind that it was adopted even though the lacunae
legis existed. In other words, was the Court legally competent to reach a
Decision as the one at hand when neither the Law on Registers of Birth,
Marriages and Deaths nor the Law on Master Citizen Number contained provisions
for change of the sex mark or the UMCN in case of sex-reassignment surgery?
Even though this might seem like a rational dilemma, the Court – regardless of
the fact that it is one in a Continental-European system – reached the right
decision. Its basis is the international law, which was rightfully addressed in
the Decision itself. Applying the XXVth Constitutional Amendment[8] and the Law on the Courts[9] where it is stipulated that the “[c]ourts adjudicate
on the basis of the Constitution, the laws and the international agreements” it
turned to the European Convention of Human Rights, namely its Art. 8. The first
paragraph therein stipulates that “[e]veryone has the right to respect for his
private and family life […]”, while the second one forbids national public
authorities to interfere in the exercise of this right except if that is done in
accordance with the law and in such way that the measure is justified.[10] Bearing in mind that gender identity is a private matter, one which the
Macedonian legislation restricts in no way, the Court found that the
authorities should have not interfere and prevent X to register his/her own
post-surgery sex in the public records. Once it resolved that by refusing to
register X’s post-operative sex the authorities breached the country’s negative obligation, the Court went on
and determined that the country also has a positive one – to enable persons to effectively exercise this right. The Court based
its finding on one of the most famous judgments of the European Court of Human
Rights (hereinafter: ECHR), Christine
Goodwin v. UK,[11] where aside from what is cited in the Decision (para. 77 and 85) the ECHR also
found that “the Court is struck by the fact that nonetheless the gender
re-assignment which is lawfully provided is not met with full recognition in
law, which might be regarded as the final and culminating step in the long and
difficult process of transformation which the transsexual has undergone” (para.
78), as well as that “the Court does not underestimate the difficulties posed
or the important repercussions which any major change in the system will
inevitably have, not only in the field of birth registration, but also in the
areas of access to records … however … these problems are far from insuperable
[…]”. The Decision further on elaborates the views of the ECHR in the case H. v. Finland.[12]
In that
respect, there are several reasons for which this Decision is essential.
Firstly, it delivers a message that the Macedonian justice system has a will to
protect transgender individuals who have undergone sex-reassignment surgeries.
Secondly, it is based not only on the domestic legislation but also on the
European Convention of Human Rights and the case-law of the ECHR, which is
fairly rare in the Republic of Macedonia. Although the Court cites two
judgments of the ECHR (for instance, the respective issue has been dealt in L. v. Lithuania too), serious progress has been made when it comes to the right to
privacy as well as the right to equality. X is finally able to conclude the
process which lasted more than 4 years (if one considers that it started when
the medical therapy began), something which would not be possible if the public
registries are inconsistent with the factual state regarding X’s sex. Thirdly,
the directions the Court provides in this Decision can serve as guidelines for
the Office for Management of Registers of Births, Marriages and Deaths and the
Ministry of Interior Affairs in future cases. Fourthly, the Decision shall send
a signal to the Macedonian law-maker, in other words it will motivate him to
adopt amendments of the respective legal acts so that the country's legal
system enables recognition of the gender identity. This means that the laws
should have (administrative) procedural rules under which the administrative
authorities can amend the mark for sex in the records and issue a new UMCN. Of
course, this does not have to imply amendments of the current acts; it is
always possible that the country adopts a separate act on gender identity
recognition.
Dilemma
At the very end, even though this is unrelated with the
Decision itself, we would like to point out a dilemma which could appear if similar
decisions are to be reached in the future:
would a court be able to adjudicate as in the present
case and allow for change in the public registries and of the UMCN if the
person who reassigned his/her sex is already married with what used to be
an individual of the opposite sex (before the surgery)?
This dilemma appears due to the provisions of the Law on
Family which implicitly forbid same sex marriages stipulating that “marriage is
union of a man and a woman” (Art. 6, para. 1).[13] So, let us explain through a hypothetical situation. A
person has been registered as a man when born. During his life it got married
to a person who was registered as a woman. The prior person changes his sex few
years later and asks for a new UMCN and a correction in the public registry.
Would the authorities breach the provisions of the Law on Family if they
fulfill the person’s request and accept the person’s request? In fact, this is
something the law-maker should bear in mind when adopting the legal framework
for recognition of gender identity in the future. The (administrative)
procedure for change of UMNC and sex-mark in the public records should be
initiated only if the person who files the request is not married prior to that.
Such practice actually exists in one of the federal states of Australia.[14] Of course, this dilemma would not exist in a future
case where the Law on Family is amended so that same-sex marriages are no
longer forbidden. Nevertheless, it is important that the law-maker does not
create collision between the different legal acts in the meantime.
[1] The UMCN is
a personal identification number used in the Republic of Macedonia. The reason
why it has to be changed whenever a sex-reassignment surgery takes place is
that it reflects the person’s sex.
[2] More on
this classification at: https://tgeu.org/trans-rights-map-2017/ (last time
visited on 12.11.2018).
[3] The Office
for Management of Registers of Births, Marriage and Deaths is a body within the
Ministry of Justice.
[4] Published
in Official Gazette no. 8/1995, 38/2002, 66/2007, 98/2008, 67/2009, 13/2013, 43/2014, 148/2015, 27/2016
and 64/2018. The latest amendment is not relevant as for this case
since is adopted after it was completed.
[5] Published
in Official Gazette no.38/2005, 110/2008
and 51/2011. This act is now
derogated with the Law on General Administrative Procedure published in
Official Gazette no. 124/2015. However, it was applicable in the time when this case took place.
[6] Published
in Official Gazette no. 62/2006 and 150/2010.
[7] Published
in Official Gazette of the Republic of Macedonia no. 16/2015.
[8] Published
in Official Gazette of the Republic of Macedonia no. 107/2005.
[9] Published
in Official Gazette of the Republic of Macedonia no. 58/2006, 62/2006, 35/2008,
150/2010, 83/2018 and 198/2018.
[10] The measure
is justified if it is carried out for the interest of national security, public
safety or the economic well-being of the citizens, for the prevention of
disorder or crime, for the protection of health and morals, or for the
protection of the rights and freedoms of others.
[11] The English
version of the judgment can be found at: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-60596%22]} (last time visited on 12.11.2018)
[12] The English version of the judgment
can be found at https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22h%20v.%20finland%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-114486%22]} (last visited on 12.11.2018).
[13] Published
in Official Gazette no. 80/1992, 9/1996, 38/2004, 33/2006, 84/2008, 67/2010, 156/2010, 39/2012,
44/2012, 38/2014, 115/2014, 104/2015 and 150/2015.
[14] The
Northern Territory of Australia where the sex mark in the registries can only
be changed if the person proves he/she is unmarried. More information available
at: https://nt.gov.au/law/bdm/register-a-change-of-sex-on-a-birth-certificate (last
time visited 12.11.2018).