X and Y v Romania (Application Nos. 2145/16 and 20607/16)

In brief

The European Court of Human Rights held that there had been a violation of Article 8 because the procedure for legal gender recognition in Romania was not clear and foreseeable (paras 155, 157) and because the national authorities refused to change the applicants’ civil-status records for lack of genital surgery (paras 159, 163, 167–168). It did not attribute a surgery requirement to Romanian legislation as such: domestic case-law was divided. Applying the reasoning of AP, Garçon and Nicot v France, the Court concluded that the fair balance was upset in the circumstances of these applicants, who did not want the surgery for the purpose of recognition and whose courts gave no reasoned account of the general interest (paras 160–161, 164–165); it accepted that rigorous recognition procedures can be justified (para 158).

Key provisions

• Article 8 ECHR — no surgical-intervention precondition for legal recognition : Refusing legal gender recognition for lack of genital surgery that the applicants did not wish to undergo for that purpose, without any reasoned balancing by the national courts, breached Article 8 in the circumstances of the case (paras 160, 164–165, 167–168).

When relevant

Our analogy, not the Court’s holding: when organisational policy demands surgical or specific medical evidence as a precondition for trans recognition. The judgment itself concerns State legal recognition in civil-status records and applies the AP / Garçon / Nicot reasoning.