Georgian transgender man denied legal gender recognition lodges application at European Court of Human Rights

29 October 2019
Georgian transgender man denied legal gender recognition lodges application at European Court of Human Rights

Nikolo Ghviniashvili understood that he was male from a very young age. Since his twenties, Nikolo – who was registered as female at birth – has lived permanently as a man. He has undergone hormone treatment, bringing his physical appearance into conformity with his male identity. Nikolo’s family all accept that he is a man. But the Georgian authorities refuse to do so. Nikolo has been prevented from amending his official identity documents to reflect his gender identity, as he has not undergone gender reassignment surgery—something that he does not wish to do. The gender marker on his ID still reads “F”.

When asked to show his identity documents – at work, at the bank or when crossing a border – Nikolo fears being forced to disclose his status as a transgender man. He has been asked intrusive questions about his private life, has received offensive comments, and is left vulnerable to transphobic prejudice, discrimination and harassment. Nikolo is often simply forced to avoid placing himself in situations in which he would be required to produce his documents. His long term partner has been personally affected by Nikolo’s treatment, and their relationship is not formally recognised by the Georgian authorities.

EHRAC, along with the Georgian Young Lawyers’ Association (GYLA), have lodged an application at the European Court of Human Rights (ECtHR) on Nikolo’s behalf, arguing that he has experienced degrading treatment, an invasion of his privacy and discrimination.[i]

“This case has significance for the transgender community living in Georgia. The vague nature of domestic law continues to cause uncertainty for people seeking legal gender recognition (LGR). The disparity between official gender markers and the self-identity of transgender people means that they are often forced to live under the constant fear of physical or verbal violence rooted in discriminatory and prejudiced attitudes. The impetus behind lodging this application is to seek a positive outcome in regard to establishing a transparent and accessible legal framework for LGR, as well as to contribute to reducing the prevailing discriminatory environment in Georgia.”

Tamar Oniani, GYLA Strategic Litigation Lawyer

According to domestic Georgian law, an individual is permitted to request changes to their civil status records on the basis of “sex change”—although this term is not defined by law. Nikolo’s applications to domestic authorities and courts to amend his official documentation have consistently been refused, even though his doctor has formally diagnosed him with “transsexualism”.

EHRAC and GYLA argue that the State’s failure to respect Nikolo’s gender identity breaches his right to respect for his private and family life (Art. 8). The State’s refusal to amend the sex marker in Nikolo’s official documents is compounded by its failure to put in place an adequate and effective procedure by which transgender people can change their legal gender and have such a change recognised in law.

Georgia’s failure to put in place a clear and effective mechanism by which trans people can change their legal marker—and its conditioning legal recognition on the apparent requirement that they undergo surgery – constitutes inhuman and degrading treatment (Art. 3), it is argued. Nikolo faces constant fear, stress, tension and anxiety, and is exposed to public insult, humiliation, abuse and the threat of violence, as a consequence of the authorities’ refusal to grant him legal recognition for his gender identity.

Nikolo’s ECtHR application also argues that he has been subjected to discrimination on the basis of his transgender status by the authorities’ failure to legally recognise his male gender, which EHRAC argues is in violation of his right to protection from discrimination (Art. 14). He is treated differently to cisgender or non-trans people, and he is also discriminated against compared to trans people who are willing to under gender reassignment surgery.

“The disconnect between their gender identity and the gender recorded on their identity documents places the transgender community in a uniquely disadvantaged position. Georgian law currently requires an invidious choice between unregulated, invasive gender re-assignment surgery, and daily humiliation and prejudice. The response of many trans-persons is simply to withdraw and conduct their lives on the unregulated fringes of society. We hope that this, and our other similar cases, will result in a change to the legislation, making legal recognition easy and accessible.”

Jessica Gavron, EHRAC Legal Director

Nikolo Ghviniashvili’s case closely mirrors two other cases litigated by EHRAC and the Tbilisi-based Women’s Initiatives Supporting Group (WISG) on behalf of two Georgian trans men who are both challenging the State’s refusal to change the gender marker in their official documents. Like Nikolo, the two men have both been subjected to degrading treatment when required to produce official identification. EHRAC and WISG filed the reply to the Government’s observations in their cases in March 2019.  There is strong legal precedent for the ECtHR to rule in the three men’s favour. In the case of A.P., Garçon and Nicot v. France—which involved three transgender applicants who had sought to have the indication of gender on their birth certificates corrected but were refused by the French authorities—the Court ruled that the requirement to undergo gender reassignment surgery for legal gender recognition was in breach of the right to respect for private and family life.

“Each lesbian, gay, bisexual, trans or gender diverse person in Georgia puts in place some sort of survival strategy. Very few are protected by status or wealth; others leave the country and break their family bonds to seek asylum elsewhere. Those who remain face the choice of revealing their true self and being subjected to certain violence and discrimination or concealing that essential aspect of their identity and living in a parallel world. For them, the fate is the invisibility of their needs and their realities, non-existence in official data and constant fear of exposure.”

Victor Madrigal-Borloz, “Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity on his visit to Georgia” (2019)

LGBT+ people in Georgia face the constant threat of discrimination and abuse. In September 2019, the Committee of Ministers of the Council of Europe expressed ‘concern’ over Georgia’s failure to uphold the rights of LGBT+ people, including the lack of protection provided by the State for an aborted pride march that was due to take place in June 2019. The pride event—which would have been the first of its kind in Georgia– was cancelled amid threats of violence. Activists later managed to hold a small but historic LGBT+ pride rally in Tbilisi on July 8 2019.

[i] Nikolo Ghviniashvili’s case was communicated to Georgia by the European Court of Human Rights (ECtHR) on 9 January 2020.