Georgia’s denial of legal gender recognition to trans men challenged before European Court

Published: 6 Sep 2018

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“The process of legal gender recognition is not regulated by the State. This increases the risk of unemployment and poverty for transgender people, leading to their marginalisation, and rendering them vulnerable to transphobic hate crime. Stigma, unemployment and poverty present further obstacles for trans people in accessing the tools they need to seek legal gender recognition, creating a vicious circle, which is extremely difficult to overcome.”

Keti Bakhtadze (Lawyer), Women’s Initiative Supporting Group

Two Georgian trans men, Mr D and Mr K,[1] are challenging Georgia’s refusal to change the gender marker in their official documents. They submitted their applications to the European Court of Human Rights in 2017, and in September 2018, the Court requested the Georgian Government’s observations on their cases. They are represented by the European Human Rights Advocacy Centre, based at Middlesex University (London), and the Women’s Initiatives Supporting Group (WISG, Tbilisi).

Both Mr D’s and Mr K’s applications to change the gender marker in their official records to reflect their male gender were refused by the Georgian authorities, who argue that they must undergo gender re-assignment surgery before being allowed to do so: such surgery is not provided by the state healthcare system or required by law. Without documents reflecting their acquired gender, both men have been subjected to humiliating treatment and verbal abuse when they have shown their identity documents, for example when accessing medical care and essential services such as banking. Both men are unable to obtain a permanent job and Mr D is unable to effectively participate in the upbringing of his children. Despite recent anti-discrimination legislation, Georgia is a socially conservative country, and the situation facing both men causes them great anxiety and fear, and has isolated them within their local communities.

The Court recently ruled in a French case that the requirement to undergo gender re-assignment surgery for legal gender recognition is in breach of the right to respect for private and family life (Article 8 of the European Convention on Human Rights (ECHR)). Mr D and Mr K similarly argue a breach of their right to respect for their private and family life, in that they should not be required to undergo such a surgery and that Georgia has failed to put in place a clear legal framework to allow them to amend their identity documents. They also argued that they have been subjected to degrading treatment (Article 3 ECHR) and discriminated against on the basis of their gender identity as a result of the Georgian authorities’ failure to change the gender marker on their official documents (Article 14 ECHR).

“These cases reflect a systemic problem in Georgia. Obtaining legal gender recognition is crucial to ensuring that trans people can live in dignity, without harassment, fear and discrimination. However, Georgian law fails to clearly regulate the manner in which trans people can obtain legal gender recognition, with inconsistent and arbitrary consequences, as both Mr D and Mr K have experienced.  We hope that by litigating these cases before the European Court, the position for trans people seeking legal recognition in Georgia will be clearer and simpler in the future.”

Ramute Remezaite (Legal Consultant) and Joanne Sawyer (Lawyer), EHRAC

A crowd attacks a minibus carrying gay rights activists during an International Day Against Homophobia and Transphobia (IDAHO) rally in Tbilisi, May 17, 2013. REUTERS/Stringer
A crowd attacks a minibus carrying gay rights activists during an International Day Against Homophobia and Transphobia (IDAHO) rally in Tbilisi, May 17, 2013. REUTERS/Stringer

These are EHRAC and WISG’s first joint cases. To support our argument, we obtained an expert report on the detrimental impact of denial of legal gender recognition on trans individuals from Prof. Stephen Whittle at Manchester Metropolitan University. The Georgian Government is due to submit their observations on the case in January 2019, after which EHRAC and WISG will submit the applicants’ joint response.

Discrimination against LGBT people is a systemic problem within Georgia and across the Caucasus region. We are currently litigating high-profile LGBTI cases in Georgia, Russia and Armenia, on issues such as protest rights, failure to protect the LGBTI community and investigate crimes, and discriminatory laws and practice. EHRAC and the Georgian Young Lawyers’ Association represent WISG before the Court in a case concerning abuse against LGBT activists taking part in a flash mob organised to mark the International Day against Homophobia in 2013.

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[1] Mr D’s application was submitted on 1 August, and Mr K’s on 10 November 2017. They both wish to remain anonymous in their cases before the European Court.