Ref. HRA 1999/3
©1999 Human Rights Awareness
The European Court of Human Rights:
is it Transgender Friendly?
The European Court for Human Rights (ECHR) has been established as a full time court in late 1998, to enforce the European Convention of Human Rights (ECHR) over the countries members of the Council of Europe (an entity that includes the countries of the European Union [EU], as well as other European countries). Applications after restructuring soared, with nearly 10,000 registered applications as of June 1999.
The newly reorganized Court has the potential to become the foremost tool for the enforcement of human rights in Europe. The number of applications suggests a dissatisfaction with the judicial systems of several countries, and the need of an over-national remedy. Part of the activity of the Court has been related to the slowness and inefficiency of judgement by national courts. For example, the Court ruled against Italy (the EU country with the largest number of applications) in cases of simple judgements that took several years to be reached. Of 83 judgements in cases against Italy, about one half regarded violations of proposition 1 of article 6: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
This indicates that the Court has been burdened by cases which are mostly “marginal” human rights cases, and that could be efficiently dealt in national courts, or in other courts whose focus is not on human rights. For example, cases concerning article 6.1 have been about the unreasonable length of eviction procedures in Italy. Only in one case out of 83 judgements against Italy the subject of torture and ill-treatment in prison was brought to the attention of the Court.
It may be difficult that in the most homophobic countries in Europe abuses against gays and transsexuals could reach the Court. Not unlike what was not uncommon with rape's victims, gay victims may be too often reluctant to expose themselves as gay, because the stigma may bring along further abuses and no support.
A major limitation may be also the lack of explicit legal tools for the protection of homosexual and transsexual women and men in the European Convention of Human Rights. Neither sexual orientation nor gender identity are mentioned in Article 14 (enjoinment of the rights set forth in the Convention).
In addition, in cases of transsexualism-related suits, the judgment of the Court has been often against the applicants, with disappointing motivations. In the 1997 case of SHEFFIELD and HORSHAM v. THE UNITED KINGDOM, on
“authorities’ continuing insistence on determination of gender according to biological criteria and refusal to annotate or update information inscribed on register of birth to take account of post-operative gender status” –
the court ruled that:
“… detriment suffered by applicants through being obliged to disclose pre-operative gender in certain contexts not of sufficient seriousness as to override respondent State’s margin of appreciation – situations relied on by applicants to illustrate detriment infrequent and requirement to disclose pre-operative gender in such situations justified – authorities have also sought to minimise intrusive enquiries as to applicants’ pre-operative status – no disproportionate interference with applicants’ rights to respect for their private lives.”
This means that any transgender woman has no right not to be “exposed as a transsexual”. The Court probably ignored the dramatic consequences (even life-threatening) that such exposure may have. In another case the Court ruled against the applicant, a transsexual woman who wished to marry a man:
"In these circumstances, the Court does not consider that it is open to it to take a new approach to the interpretation of Article 12 (art. 12) on the point at issue. It finds, furthermore, that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person's sex for the purposes of marriage, this being a matter encompassed within the power of the Contracting States to regulate by national law the exercise of the right to marry."
In all 7 cases on transsexuals brought to the attention of the Court, of which 5 on violation of Article 8 (“Everyone has the right to respect for his private and family life, his home and his correspondence”), judgment has not been in favor of the plaintiffs.
©1999 Human Rights Awareness