This is a repository copy of An improved protection for the (mentally ill) trans parent: A
queer reading of A.P., Garçon and Nicot v France.
White Rose Research Online URL for this paper:
http://eprints.whiterose.ac.uk/121964/
Version: Accepted Version
Article:
Gonzalez Salzberg, D.A. (2018) An improved protection for the (mentally ill) trans parent: A
queer reading of A.P., Garçon and Nicot v France. Modern Law Review, 81 (3). pp.
526-538. ISSN 0026-7961
https://doi.org/10.1111/1468-2230.12344
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1
An improved protection for the (mentally ill) trans parent: A queer reading of A.P.,
Garçon and Nicot v France.
Damian A. Gonzalez-Salzberg
Abstract
The European Court of Human Rights has been deciding cases concerning LGBT rights since
the early 1980s. Its case law on trans rights has changed drastically through time, imposing
upon the States of the Council of Europe certain minimum standards regarding the legal
recognition of gender identity. In its recent judgment from April 2017 the Court laid down a
new rule to be adopted by domestic legislation; namely, that the legal recognition of gender
transition cannot be made conditional upon pursuing medical or surgical procedures which
have (or are likely to have) sterilising effects. This article analyses the judgment from a
critical perspective grounded on queer theory, weighting both the positive and the negative
elements of the Court’s decision.
Keywords: European Court of Human Rights, LGBT rights, trans rights, gender recognition,
gender transition, queer theory.
Introduction
On 6 April 2017 the European Court of Human Rights (hereinafter ‘the Court’) delivered its
judgment on A.P., Garçon and Nicot v France. This is the most recent judgment in a series of
cases concerning trans law decided by the Court since the 1980s.
1
During its first two decades
Lecturer in Law, University of Sheffield. I am grateful to my friend and colleague Dr Yin Harn Lee and to the
anonymous reviewer for their very helpful comments on an earlier draft.
1
Within this piece, I follow Stephen Whittle’s use of the term ‘trans’, as an umbrella term to refer to any person
who does not perceive their gender identity as the same as was socially expected for them to perceive following
2
dealing with gender identity, the Court refused to find that States were under an obligation to
grant full legal recognition to the gender transition of applicants who brought their claims to
Strasbourg. The turning point in the case law was in 2002, when the Court decided that the
lack of full recognition of the gender of two trans women who had undergone a gender
transition process provided by the State was a violation of the right to respect for their private
life.
2
The cases brought to Strasbourg within the last fifteen years have mostly dealt with the
State-imposed requirements to be fulfilled by trans individuals for obtaining full legal
recognition of their gender. In A.P., Garçon and Nicot, the Court revisited its position
regarding two of these requirements: sterilisation and, incidentally, genital surgery.
The case involved three trans women who had been denied due recognition of their
gender identity in France, as the domestic courts considered that they had not fulfilled the
different requirements imposed by the legislation for obtaining the legal recognition of their
gender. The Court examined the 2012 French legislation on gender transition in light of the
European Convention on Human Rights (hereinafter ‘the Convention’), having to decide
whether some of the requirements imposed by said legislation were compatible with the
obligations emanating from Article 8. This article establishes that every person has the right
to respect for their private life and, therefore, should be free from unjustified interference by
a public authority with the exercise of such a right.
3
gender classification at birth. Conversely, if I use the term ‘transgender’ or ‘transsexual’ I follow the term used
in the specific case to which the reference is made. See: S. Whittle, Respect and Equality: Transsexual and
Transgender Rights (London: Cavendish, 2002) xxii-xxiii.
2
Christine Goodwin v United Kingdom [GC] (2002) 35 EHRR 18; I. v United Kingdom [GC] (2003) 36 EHRR
53.
3
Even though the legislation had been amendment on 12 October 2016, the Court analysed the case under the
previous norm, as that was the legal grounds for rejecting the applicants’ claims. The new legislation has
adopted a model that still contemplates judicial intervention for legal gender recognition, but no longer requires
3
While the Court decided to examine the three applications jointly,
4
each of them
presented some differences. Ms A.P., the first applicant, had been diagnosed with Harry
Benjamin’s Syndrome following consultation with medical doctors in France. She decided to
undergo genital surgery in Thailand, because she believed that surgery was a required step to
obtain legal recognition of her gender in France. Nevertheless, the domestic courts denied her
request for gender recognition as she refused to undergo physical and psychological
evaluations by an inter-disciplinary medical team. These examinations were imposed by the
legislation in order to ‘confirm’ that, at the time of a request for gender recognition, the
applicant should still be medically considered as transsexual (sic) and to corroborate that the
applicant’s genitalia match those expected in a person of their asserted gender. Before the
Strasbourg Court, Ms A.P. complained that the required intrusive examinations by an inter-
disciplinary team amounted to a violation of her Convention rights, mainly the right to
respect for her private life.
The second applicant, Ms Émil[i]e Garçon, was undergoing hormonal treatment when
she brought her claim to the domestic courts. Her request was rejected as she did not provide
due medical certification of her transsexuality (sic) and, most importantly, she failed to prove
that she had undergone a gender transition process that could be considered ‘irreversible’.
Similarly, the third applicant, Ms Stéphan[i]e Nicot, faced the rejection of her claim because
the domestic courts did not consider her gender transition to be irreversible, as she had not
undergone genital surgery. Both applicants submitted to the Court that the requirement of
sterilisation, as implicitly demanded by the need to have undergone an ‘irreversible’
transition, was a violation of the right to respect for private life. Ms Garçon also argued that
the applicant to prove having undergone any type of medical or surgical treatment. See: A.P., Garçon and Nicot
v France ECtHR 6 April 2017 at [68].
4
ibid at [82].
4
the legal requirement of medical certification of mental illness amounted to a further
violation of the Convention. Therefore, when the case came to Strasbourg, the Court had to
decide whether the piece of domestic legislation that conditioned gender recognition upon
intrusive medical examinations, medical diagnosis of a mental disorder, and having
undergone an irreversible transition, was compatible with the Convention.
5
The present article uses queer theory as a theoretical lens to read the case under study.
Queer theory offers a post-structural view on identities that contest their stability, challenging
the fixity of categories such as sex, gender and sexuality, as well as the traditional
construction of these characteristics as opposed binaries.
6
Following the work of Judith
Butler, queer theory rejects the traditional distinction between sex and gender, understanding
both concepts to be cultural constructions with no causal relation tying them together.
7
It
proposes that identities are performatively constructed through the reiteration of acts,
opposing the idea of an internal essence of the body that materialises as genders and
sexualities.
8
However, these performative identities are not freely chosen by the individual,
but are an effect of regulatory systems.
9
Queer theory makes use of Michel Foucault’s work
to question the techniques of knowledge and power deployed by a normalising society that
5
ibid at [83]-[85].
6
A. Jagose, Queer Theory: An Introduction (Melbourne: Melbourne University Press, 1996) 3; C. Stychin,
Law’s Desire: Sexuality and the Limits of Justice (London: Routledge, 1995) 141; J. Weeks, The Language of
Sexuality (Abingdon: Routledge, 2011) 146.
7
J. Butler, Gender Trouble: Feminism and the Subversion of Identity (Abingdon: Routledge, 1990) 10-11 and
43-44. Consequently, the article uses the terms ‘sex’ and ‘gender’ interchangeably.
8
N. Sullivan, A Critical Introduction to Queer Theory (Edinburgh: Edinburgh University Press, 2006) 89-90; A.
Jagose, n 6 above, 90-91.
9
J. Butler, ‘Critically Queer’ in S. Phelan (ed), Playing with Fire: Queer Politics, Queer Theories (New York:
Routledge, 1997) 16.