Van Kück v Germany (Application No. 35968/97)

In brief

The European Court of Human Rights held that the manner in which German civil courts evaluated evidence of the medical necessity of gender-confirming treatment for the purposes of private health-insurance reimbursement violated the applicant’s rights under Articles 6 and 8 of the Convention. The Court emphasised that the right to gender identity and personal development falls within the scope of Article 8 (paras 69, 75), and found disproportionate the burden placed on the applicant to prove that her treatment was medically necessary, in the setting of court proceedings (paras 56, 81–82); it did not state a general rule about intrusive evidential demands.

Key provisions

• Article 8 ECHR — gender identity within “private life” : The Court confirmed that gender identity and personal development fall within the scope of Article 8.
• Article 6 ECHR — fair-trial guarantees in evidential evaluation : The civil courts’ approach to evidence of medical necessity was held to deny the applicant a fair hearing.

When relevant

When considering proportionality of evidential or medical-proof requirements imposed on trans applicants by insurers (the setting of the judgment: courts deciding an insurance dispute, paras 56, 78, 82, 84). Application to employers or public authorities is toolkit analysis by analogy.