Communicated on 19 October 2017
THIRD SECTION
Applications nos. 36253/13 and 52516/13
R.L. against Russia
and P.O. against Russia
lodged on 25 May 2013 and 30 May 2013 respectively
STATEMENT OF FACTS
The applicants are Russian nationals. They are transgender men (female‑to-male transgender people).
They were born genetically as women and, having no chromosomal anomalies, were registered at birth as female. They identify themselves as male.
The President decided that the applicants’ names should not be disclosed to the public (Rule 47 § 4 of the Rules of Court).
The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. R.L. v. Russia, no. 36253/13
The applicant was born in 1983 in Novosibirsk Region.
On 16 February 2006 he was diagnosed with transsexualism (ICD-10 code F64.0) by a medical panel at the Bekhterev St Petersburg Psychoneurological Research Institute (Санкт-Петербургский научно‑исследовательский институт им. Бехтерева). The panel issued a certificate stating the diagnosis and recommending “a change of documents and appropriate surgical correction”.
On 12 October 2006 the applicant underwent a double mastectomy and was prescribed testosterone-based hormone replacement therapy.
In 2007 he applied to a civil registry office to have the gender in his birth records changed from female to male. His request was accompanied by the certificate issued on 16 February 2006.
On 25 July 2007 the applicant was notified that his request had been refused because he did not have a “document of a prescribed form certifying the change of gender issued by a medical facility” (документ установленной формы об изменении пола, выданный медицинской организацией – hereinafter “gender reassignment certificate”) as required by section 70 of the Civil Records Act 1997 (ФЗ «Об актах гражданского состояния» 1997 года). On 21 February 2008 he appealed against the refusal in court.
On 27 March 2008 a district court dismissed the applicant’s appeal on the grounds that he had missed the statutory three-month time-limit without good reason. It also stated that according to the case file, he had undergone a mastectomy and hormone treatment but not surgical gender reassignment. There had therefore been no grounds for changing his birth records. It appears that he did not appeal against that judgment.
According to the applicant, in 2012 he learned that “international law considers the requirement for surgery to be unlawful for the purpose of changing documents”. Subsequently he repeatedly submitted his request to the civil registry office. On 2 November 2012 it was dismissed on the same grounds as before (see paragraph 8 above). The applicant challenged the refusal in court.
On 7 December 2012 a district court dismissed his claim on res judicata grounds. On 15 January 2013 the decision was upheld on appeal.
The applicant submits that he was unable to undergo some of the surgery because of the cost and the fact that gender reassignment is not covered by medical insurance.
B. P.O. v. Russia, no 52516/13
The applicant was born in 1980 in Rostov Region.
On 27 February 2012 a medical panel at the Moscow Psychiatric Research Institute (Московский научно-исследовательский институт психиатрии) issued a report diagnosing him with transsexualism and recommending that his name and gender be changed by the appropriate authorities.
It appears that the applicant did not undergo any surgery.
On an unspecified date he lodged a civil action requesting that his civil records be changed.
On 25 April 2012 a town court dismissed the applicant’s claim. The relevant part the judgment reads:
“... As the court has established, there is a report dated 27 February 2012 by a medical panel recognising the change of psychological gender from female to male under natural circumstances.
However gender reassignment requires the following steps:
Medical gender reassignment, State registration of the change of name and change of birth records by a civil registry office, and issuance of a new passport by the police.
Medical gender reassignment includes hormone treatment and surgery (several procedures).
The court was not provided with a [gender reassignment certificate].
Russian law does not currently provide for a change to civil records after the issuance of medical reports on a change in psychological gender (while it is possible Belarus, for example).”
Referring to a collection of the Court’s judgments from 2000 the Court stated:
“According to the European Court [of Human Rights], refusing changes to civil records and issuing a new birth certificate which differs from the existing records may not as such be considered an interference with private and family life.
Accordingly, as there is no legal provision requiring the civil registry authorities to change [the recorded] gender without a [gender reassignment certificate], the court has no legal basis for allowing [the plaintiff’s] claim ...”
The applicant appealed, arguing, inter alia, that the Town Court had had no basis for concluding that evidence of medical gender reassignment (hormone replacement therapy and surgery) was necessary. He considered gender reassignment primarily a psychological and social process.
On 28 June 2012 a regional court dismissed the applicant’s appeal. The relevant part the judgment reads:
“... The trial court was correct in considering that medical gender reassignment, including the appropriate hormone treatment and surgery, was necessary, as was providing a gender reassignment [certificate]. The trial court was correct in stating that [the 27 February 2012 medical report] was not that kind of document ...
The [appellate] court does not see any evidence of a violation of [the plaintiff’s] rights and freedoms, including those recognised by international law... the adopted judgment is consistent with the European Court [of Human Rights’] approach to similar issues (see ... judgment of 25 March 1992, B. v. France) ...”
The applicant lodged an appeal on points of law.
On 28 November 2012 a single judge from the regional court dismissed the appeal as inadmissible. The relevant part of the decision reads:
“... In accordance with section 70 of the Civil Records Act 1997, a change to civil records is possible where there is a [gender reassignment certificate].
The following stages in gender reassignment must be distinguished: medical gender reassignment, State registration of the change of name and change of birth records by a civil registry office, and issuance of a new passport by the police.
The trial court dismissing the claim was correct in considering that medical gender reassignment includes hormone treatment and surgery.
Since a [gender reassignment certificate] was not provided to the court [there was no legal basis for allowing the claim].
The argument that [the 27 February 2012 medical report] was a [gender reassignment certificate] is the plaintiff’s erroneous opinion ...
The medical report is a recommendation and has no legal effect; [among other things] it cannot be a legal ground for changing civil records.”
COMPLAINTS
The applicants complain under Article 8 of the Convention that the absence of a transparent and accessible procedure for changing their names and gender records interfered with respect for their private life. In particular, they complain that the authorities’ failure to put in place “a prescribed form” for the gender reassignment certificate prevented them from changing the relevant records.
They also complain under Article 8 of the Convention that the requirement to undergo various medical procedures before any changes to their civil records could be made interfered with their private life.
The applicant in case no. 36263/13 also complains under Article 14 of the Convention in conjunction with Article 8 of the Convention that the State failed to protect him from discrimination and transphobia by refusing to provide him with identification papers reflecting his male gender. Relying on the same provision, he complains that legal gender reassignment was dependent on him undergoing costly medical procedures not covered by medical insurance.
COMMON QUESTIONS
1. Has the State complied with its positive obligation to respect the applicants’ private life, within the meaning of Article 8 § 1 of the Convention? (see A.P., Garçon and Nicot v. France, nos. 79885/12 and 2 others, §99, 6 April 2017)
2. Did Russian law at the material time provide for a procedure for changing a person’s name and gender records in the event of gender reassignment? Did the applicants have access to that procedure?
3. What were the medical requirements and procedures necessary for lawfully changing the name and gender records of a person diagnosed with transsexualism? What was the legal basis for those requirements? Were hormone replacement therapy and surgeries, if any, required?
4. The Government are requested to provide the Court with information on the “document of a prescribed form certifying the change of gender issued by a medical facility” as provided for in section 70 of the Civil Records Act 1997, including its form, the medical requirements and procedure for issuance and the legal acts establishing them.
CASE-SPECIFIC QUESTIONS
R.L. v. Russia, no 36253/13
1. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the grounds of him being a transgender man, contrary to Article 14 of the Convention read in conjunction with Article 8?
2. Does the applicant belong to a particularly vulnerable group in society, whose members have suffered considerable discrimination in the past? If so, what were the “very weighty reasons” for the restrictions in question of his fundamental rights (see, mutatis mutandis, Horváth and Kiss v. Hungary, no. 11146/11, § 128, 29 January 2013)?
3. Did the Russian authorities fail to protect him from discrimination by refusing to correct his existing civil records and provide identification papers reflecting the gender he identifies himself with?
4. Was the applicant discriminated against in the enjoyment of his rights guaranteed under the Convention by legal gender reassignment being dependent on him undergoing costly medical procedures not covered by medical insurance? Was there an objective and reasonable justification in this regard for treating similarly people whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000‑IV, and, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001)?
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