Court says Georgia must establish clear procedures on legal gender recognition and finds existing approach breached trans citizens’ rights

30 Январь 2023
Court says Georgia must establish clear procedures on legal gender recognition and finds existing approach breached trans citizens’ rights

The European Court of Human Rights (ECtHR) has ruled that decisions by Georgia’s Civil Status Agency to deny applications by three transgender men to have their sex changed on official records breached their human rights.

The judgment, in the first successful case against Georgia in the area of legal gender recognition, covers three separate cases where the Georgian Civil Status Agency (CSA) refused to amend the official records of transgender men because they had not undergone sex reassignment surgery.

The Court found that Georgia’s approach had violated both Article 8 of the European Convention on Human Rights – the applicants’ right to respect for private and family life – and the country’s Convention obligation ‘to provide quick, transparent and accessible procedures for legal gender recognition’.

“The main positive in this judgment is that the State is forced to admit that the absence of law for trans people creates problems for us. The State now has to recognize us as citizens and adopt a law that will more or less fix our problems related to gender recognition. What the law will be like and what benefits Georgian transgender people will get from this law, will be part of our next struggles, because homophobia is flourishing in Georgia.”

Nikolo Ghviniashvili, applicant.

Keti Bakhtadze, a lawyer from EHRAC’s Georgian litigation partner, the Women’s Initiatives Supporting Group (WISG), said: “This judgment supports what we have been saying to the Georgian Ministry of Justice for years, and confirms that Georgia’s current system for legal gender recognition is incompatible with the requirements of the European Convention on Human Rights.

“We hope Georgia will now develop a regulatory system for gender recognition based on self-identification and that the Georgian Government will take into account the other decisions made by the European Court on this issue and remove its preconditions for trans people seeking to change their gender marker.”

“This is an important judgment which delivers a powerful platform from which to advocate for the quick, transparent, and accessible procedures for legal gender recognition that all parties to the Convention are obliged to provide.”

Jessica Gavron, Co-Director Legal, EHRAC

A lack of clear procedures

In its judgment the Court noted, ‘the key problem in the present case is that it is not clear at all what the legal regime for the change of the sex/gender marker actually is in Georgia.’

It added, ‘The imprecision of the current legislation undermines, in its turn, the availability of legal gender recognition in practice and, as was illustrated by the three applicants’ individual situations, the lack of a clear legal framework leaves the gatekeepers – the competent domestic authorities – with excessive discretionary powers, which can lead to arbitrary decisions in the examination of applications for legal gender recognition.’

The result: harassment, discrimination and further marginalisation

Georgia’s failure to establish clear procedures in this area has served to compound systemic discrimination against trans people in the country and contributed directly to their further marginalisation. In their April 2021 report, the country’s Public Defender noted “Without legal gender recognition, transgender people face discrimination in all spheres of life, including employment, housing policy, and social protection, resulting in social exclusion and violence, as well as restrictions on their freedom of movement.”

The authorities’ refusal to change the gender marker on the three applicants’ ID cards meant that they routinely faced harassment and discrimination in their daily lives. The applicants were frequently targeted with insulting and humiliating comments and asked to ‘explain themselves’ in a range of everyday settings, including when accessing essential services or crossing borders.

This ‘forced outing’ led to the applicants’ further marginalisation. They often lived in isolation, in fear or even in hiding, with consequences for their psychological, social and economic well-being.

A right enshrined in Georgian law

The Court noted that the country’s own laws ‘clearly enshrined… a right (to have one’s sex marker changed) in law (which) was also interpreted to form part of the relevant constitutional right to free development of personality.’

The Court noted that ‘despite the fact that such a right has existed in the country since 1998, not a single case of successful legal gender recognition has been reported to date.’

Three cases

The judgment relates to three cases brought by EHRAC in partnership with Georgian NGOs. The first two cases, concerning Mr A.D and Mr A.K., were heard anonymously and brought with the Women Initiative Support Group (WISG). For the third case, concerning Mr Ghviniashvili, EHRAC partnered with the Georgian Young Lawyers Association (GYLA).

All three applicants had applied, in 2014 and 2015, to the CSA to have their gender changed on official records. Despite having undergone a psychological assessment and being in possession of a certificate of ‘gender identity disorder (transsexualism)’, their applications were denied.

The Georgian courts accepted arguments by the CSA that, to amend their official records, they first required proof that the applicants had completed a surgical sex change procedure of ‘irreversible impact’. Despite this requirement, the authorities have failed to detail the exact nature of the required procedure. In addition, no suitably qualified surgeons are available to perform such an operation in Georgia. The ECtHR has previously found that for a State to require an individual to undergo medical and surgical intervention in order to change their gender in official documents is a violation of Article 8 of the European Convention on Human Rights.

EHRAC, WISG and GYLA argued that Georgia’s treatment of the applicants constituted a violation of their right to privacy and family life, that it resulted in them suffering degrading treatment, and that they were subjected to discriminatory treatment on the basis of their trans status. The Court found in the applicants’ favour on the first of these issues.

Jessica Gavron, co-director of EHRAC: ‘While this is a step in the right direction, the issue of discrimination is central to this case and it is disappointing that the Court found “no need” to examine our complaints under this point, particularly given the marginalisation of trans persons in Georgia.’

The Court awarded the applicants 2,000 EUR each in damages.

You can also read our case summary.

Main picture: Nikolo Ghviniashvili, one of the applicants in this case.