The Forgotten I in LGBTQIA+: ECtHR Turns its Back on Intersex People

by | Feb 22, 2023

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About Diana Dehelean and Sarah Ourednickova

Diana Dehelean is a law student at Humboldt University Berlin and holds an LLB degree (licence en droit) from Université Paris II Panthéon-Assas. Sarah Ourednickova is an MJur candidate at the University of Oxford and holds a Master's Degree in law from the Masaryk University in Brno. She has participated in Erasmus+ study exchanges at the University of Glasgow and the University of Aberystwyth, UK.

Image Description: Picture of two fists, with the letters LGBTQIA+ written across the knuckles in rainbow colours

On 31 January, the European Court of Human Rights (ECtHR) issued its first-ever judgment on rights of intersex people in Y v France. This was a Chamber judgment which may yet be referred to the Grand Chamber. It held – by six votes to one – that the refusal of national authorities to insert the term “neutral” or “intersex” (instead of “male”) on the birth certificate of an intersex person does not constitute a violation of the European Convention on Human Rights (ECHR).

Intersex people are born with sex characteristics (including genitals, gonads and chromosome patterns) that do not fit binary notions of male or female bodies. They are neither biologically female nor male. They face grave human rights abuses including infanticide (infant homicide), forced and coercive medical interventions, discrimination, and lack of access to justice. At up to 1.7 percent of the population, intersex people are an often forgotten and marginalised part of society and the lesbian, gay, bisexual, transgender, intersex and queer community (LGBTIQ+). The ECtHR has now made its own contribution to that marginalisation.

Y v France is the ECtHR’s first judgment regarding rights of intersex people, as previous cases (including P v Ukraine and M v France) had been rejected on procedural grounds. The applicant, Y, was born an intersex person without testicles and ovaries and did not develop male or female characteristics. Their birth certificate states they are “male”. As treatment for osteoporosis, they had been prescribed over a period of forty years a hormone-based treatment intended for men, which artificially changed their appearance (they grew a beard and their voice broke). Before the ECtHR, Y argued that national authorities violated their right to respect for private life under Article 8 ECHR when they refused to replace the term “male” on their birth certificate by the term “neutral” or, if that were not possible, by the word “intersex”.

Positive or negative obligation?

The ECtHR clarified that the case did not concern the question of gender self-determination. Rather, it concerned the question whether the state had violated any negative or positive obligation by refusing Y’s request [44]. The majority of the ECtHR Chamber found that the case concerns a positive obligation to secure effective respect for private life, rather than a negative obligation not to interfere with the exercise of that right. In two short paragraphs, the majority justifies this by stating that the application does not challenge an act of a public authority against the applicant, but rather a shortcoming in French law, and that the ECtHR has followed this positive obligation approach in several cases concerning transgender persons [69]-[70].

This brief reasoning is unconvincing. The applicant could have hardly challenged an entry in their birth certificate more than four decades ago. And even if this had been possible, distinguishing positive and negative obligations based solely on the type of act/shortcoming complained of is unsubstantiated. The majority should have explained better why they think the case concerns a positive obligation.

Alternatively, Judge Šimáčková‘s dissent, framing a negative obligation, is compelling. She argues that the applicant complains about the state’s insistence to forcibly place them in a box that does not reflect either their body or soul. Through this the State is violating its negative obligation not to interfere with the applicant’s private life (as in relation to transgender persons). This is particularly the case since the existence of a legal binarity implies the performance of mutilating surgeries in childhood and lifelong medication (as in the applicant’s case whose testosterone-based medication caused significant damage to their health), touching upon further negative obligations.

Bow to the State

The question of positive versus negative obligation also influenced the margin of appreciation afforded to France. The majority acknowledged a narrowing of the margin since an important aspect of the applicant’s intimate identity is concerned and the discrepancy between their biological and legal identity was liable to cause them suffering [75]-[76]. However, in the absence of a European consensus in this area – the issue being a controversial matter and important public interests such as legal certainty being concerned – the ECtHR held that France enjoyed a wide margin and that the EctHR must exercise self-restraint: it was appropriate to leave it to the French legislature and public to determine at what speed and to what extent it could meet the demands of intersex persons [77]-[80].

Dissenting Judge Šimáčková acknowledged the lack of European consensus but emphasised that the case did not concern the general issue of non-binarity, but the particular situation of a particular human being whose suffering the ECtHR should not have allowed to continue. Since a negative obligation and such an intimate and fundamental aspect of the applicant’s identity were at stake, France should have enjoyed a narrow margin. Šimáčková insisted that since intersex people (as a small and hence politically marginalised group) find it difficult to have their rights recognised by the legislature, the ECtHR has a duty to afford them protection. It is to be hoped that Šimáčková’s dissent is the voice of the future.

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