Equal Respect for the Private and Family Life of Transgender People? Analysis of the European Court of Human Rights' Case Law on Recognising Gender Identity
(2014) JAMM04 20141Department of Law
- Abstract
- This study examines whether the right to respect for private and family life, as enshrined in Article 8 of the European Convention of Human Rights, is equally enjoyed by transgender people. The focus of the research is on the European Court of Human Rights’ case law on gender identity, and special emphasis is placed on the principles of equality and non-discrimination.
For the analysis, the European Court’s jurisprudence on gender identity is divided into two sets: one, cases claiming a violation of private and family life due to non-recognition of a persons’ reassigned gender, and two, cases relating to transgender marriage. The study concludes that the Court has addressed transgender issues with a growing understanding, adjusting its... (More) - This study examines whether the right to respect for private and family life, as enshrined in Article 8 of the European Convention of Human Rights, is equally enjoyed by transgender people. The focus of the research is on the European Court of Human Rights’ case law on gender identity, and special emphasis is placed on the principles of equality and non-discrimination.
For the analysis, the European Court’s jurisprudence on gender identity is divided into two sets: one, cases claiming a violation of private and family life due to non-recognition of a persons’ reassigned gender, and two, cases relating to transgender marriage. The study concludes that the Court has addressed transgender issues with a growing understanding, adjusting its interpretation over recent years following societal changes and the increased acceptance of varied gender expression. The Court has held that non-recognition of a transsexual’s reassigned gender in legal terms amounts to a violation of his or her private life under Article 8. Additionally, it has ruled that while transgender people should be allowed to marry according to their reassigned gender, they do not have the right to remain married to their current spouse if the pertinent member state does not provide for same-sex marriages. The ‘single requirement’ as a prerequisite for legal gender recognition has so far fallen within the margin of appreciation of the contracting states.
While the Court has interpreted Article 8 in a progressive and ‘evolutive’ manner, its considerations on equality and non-discrimination have been greatly lacking in relation to gender identity. In cases invoking Article 14, the Court has merely stated that as a substantial violation was found, there is no need to address non-discrimination separately, or that as the substantial matter falls under national discretion, so do the equality considerations. Such an approach deprives Article 14 of its relevance, and fails to see the systemic problems faced by European minorities.
Finally, both United Nations treaty bodies and the Council of Europe bodies have called for greater protection against discrimination based on gender identity and expression. This shift in soft law and policy setting may be seen as a forecast of the expansion of the legal rights of transgender people in the near future. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/4466186
- author
- Korkiamäki, Iina Sofia Matilda LU
- supervisor
- organization
- course
- JAMM04 20141
- year
- 2014
- type
- H2 - Master's Degree (Two Years)
- subject
- keywords
- Gender Identity, transgender, private and family life, European Court of Human Rights, equality
- language
- English
- id
- 4466186
- date added to LUP
- 2014-06-16 13:56:53
- date last changed
- 2014-06-16 13:56:53
@misc{4466186,
abstract = {{This study examines whether the right to respect for private and family life, as enshrined in Article 8 of the European Convention of Human Rights, is equally enjoyed by transgender people. The focus of the research is on the European Court of Human Rights’ case law on gender identity, and special emphasis is placed on the principles of equality and non-discrimination.
For the analysis, the European Court’s jurisprudence on gender identity is divided into two sets: one, cases claiming a violation of private and family life due to non-recognition of a persons’ reassigned gender, and two, cases relating to transgender marriage. The study concludes that the Court has addressed transgender issues with a growing understanding, adjusting its interpretation over recent years following societal changes and the increased acceptance of varied gender expression. The Court has held that non-recognition of a transsexual’s reassigned gender in legal terms amounts to a violation of his or her private life under Article 8. Additionally, it has ruled that while transgender people should be allowed to marry according to their reassigned gender, they do not have the right to remain married to their current spouse if the pertinent member state does not provide for same-sex marriages. The ‘single requirement’ as a prerequisite for legal gender recognition has so far fallen within the margin of appreciation of the contracting states.
While the Court has interpreted Article 8 in a progressive and ‘evolutive’ manner, its considerations on equality and non-discrimination have been greatly lacking in relation to gender identity. In cases invoking Article 14, the Court has merely stated that as a substantial violation was found, there is no need to address non-discrimination separately, or that as the substantial matter falls under national discretion, so do the equality considerations. Such an approach deprives Article 14 of its relevance, and fails to see the systemic problems faced by European minorities.
Finally, both United Nations treaty bodies and the Council of Europe bodies have called for greater protection against discrimination based on gender identity and expression. This shift in soft law and policy setting may be seen as a forecast of the expansion of the legal rights of transgender people in the near future.}},
author = {{Korkiamäki, Iina Sofia Matilda}},
language = {{eng}},
note = {{Student Paper}},
title = {{Equal Respect for the Private and Family Life of Transgender People? Analysis of the European Court of Human Rights' Case Law on Recognising Gender Identity}},
year = {{2014}},
}