The case law outside of Europe that concerns trans rights is not happening in a vacuum, as the case law cited in those cases testifies, being heavily reliant on cases originating from common law Western Countries and from Western regional human rights courts. I had left the ECtHR when they reached the seminal Goodwin judgment in 2002. Since then, a steady stream of cases have reached the court that are summerised by the Court under the heading of gender identity. In the following chapter I will consider these cases, to assess how the Court has embedded this concept, that has no legal grounding in any treaty or in customary law, in the jurisprudence of the court. In light of the relentless narrative that Goodwin and the post-Goodwin jurisprudence set ‘the law’ on transgender rights, I feel it is important to remind readers of two interconnected principles of international law:
There is no rule of precedent in international law. This follows logically from the fact that all international courts, from the International Court of Justice to investment tribunals, do not sit in a hierarchical system and there is no possibility to appeal an international judgment, although some judicial and semi-judicial bodies have a limited annulment mechanism.
Also logically connected to the first principle, judgments are only binding to the parties to the dispute. This is also a general principle of international law, and it finds its expression in Article 46(1) ECHR for the Court:
The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
The Article is quite clear that the judgments of the court are binding not on the Contracting Parties, but to the parties to the dispute. There is a conceptually and legally crucial difference between the international obligation of all parties to the ECHR to abide by the judgments of the court and the international obligation of the partis to the dispute to abide by that particular judgments against them.
Case of Van Kück v Germany
A case from 2003, only a year after the judgment on Goodwin. The case concerns a male individual in Germany, who underwent sex reassignment surgery. In Germany as in Italy, the law on transsexuality from 1980 requires an application to the Court to change name and ‘sex’in official documents. Mr Van Kück was granted the application. The problems arose in respect to medical treatment. As Mr Van Kück was a civil servant (Beamter) he was entitled to a 50% discount in accessing private medical insurance. The private insurance provider had refused to cover these medical expenses. The regional court to which he appealed the decision agreed with the insurance provider that surgery was not ‘necessary medical treatment’ for his diagnosed mental health condition and that he could have accessed other treatment, such as psychotherapy. Van Kück appealed the judgment and lost again. Important to note that his conditioned being described as a ‘disease’ was not in dispute between the parties (clearly as he would not have a claim on his insurance if he did not admit to suffering from a disease requiring extensive medical treatment including major surgery). So the only dispute was over which treatment was ‘necessary’ for the purpose of the reimbursement of the medical expenses. Funnily enough, the expert in support of his application to the court claimed that psychotherapy would not have sufficed because of the applicant’s “chronic narcissistic character structure”. Also interesting is his own perception of the source of his transsexuality (Mr Van Kück was a straight married man who had served in the armed forces):
According to the Court of Appeal, the “turning-point”, as stated by the applicant, had been the moment when, after an unsuccessful operation in 1986, she [the Applicant is referred to as a woman by the Court and a man by the expert opinion: this is all quite confusing] had realised that she was infertile. The Court of Appeal quoted the following passage from the expert opinion of 1991: “The recognition that he was infertile is a decisive factor confirming the subsequent transsexual development.”
It continued in the following terms: “Fully aware of this position, the plaintiff concluded for herself: ‘If you cannot have children, you are not a man’, and as a consequence she went one step further and wanted to be a woman from then on. She had never otherwise felt that she was, or that she had to become, a woman, but was merely making a statement that she could do without a penis and still have satisfying relations with his [sic] wife ... Doing without the one is not the same as an irresistible desire for the other. In furtherance of the selfimposed goal of wishing to be a woman, from December 1986 – without medical advice, assistance or instruction – she took female hormone. That was deliberate. Having recognised – no doubt painfully – that she could not have children, she decided to distance herself from her past as a man ... It was this deliberate act of self-medication that led the plaintiff ever more to her decision that she wanted to be a woman and to look like one, although it was biologically impossible. This was based on her limited preparedness or ability to reflect critically ... but was wrongfully deliberate because the plaintiff was at all events at that stage in a position to see what the consequences of her ‘self-medication’ would be, and to act accordingly
The applicant himself presents the condition of womanhood as comparable to one of failed manhood because of infertility. Mr Van Kück claimed a breach of Article 6 (fair hearing) and Article 8 (privacy and family life).
The Court’s reasoning with respect to Article 6 against the German courts’ decision in regard of the necessity of medical treatment is not straightforward. After arguing that the courts should have sought more expert opinions on medical treatment they conclude that ‘gender identity is one of the most intimate areas of a person’s private life’ and therefore ‘the burden placed on a person in such a situation to prove the medical necessity of treatment, including irreversible surgery, appears therefore disproportionate.’ By definition then any request to prove the medical necessity of treatment is disproportionate unless the medical expert approves the medical treatment. This is an impossible test to meet and opens the door to ‘self-ID’ of transsexuality/transgenderism (the term is still not used post-Goodwin although the Court later refers to ‘gender identification’).
As usual, the least coherent part in the Court’s reasoning is the section on Article 8. This is the opening sentence:
73. In the present case, the civil court proceedings touched upon the applicant’s freedom to define herself as a female person, one of the most basic essentials of self-determination.
In the Court’s words, self determination includes the freedom of a male to define himself as a female. Self-determination is a concept that has a long pedigree in international law, especially in the context of the right of States to determine their own economic and political model, and of their people to self-govern without outside interference, as a facet of sovereignty. What it does not mean is the freedom to impose a delusion on others against all evidence. No amount of repetition can transform this falsehood in a principle of international law or a right in human rights law. There is no normative basis to this perversion of the concept of self-determination, only the accretion of falsehoods and misrepresentations that culminated in Goodwin and is not being refined and ‘polished’ by the Court. Remember that Mr Van Kück was a man who decided he was a woman because he felt he failed as a man for being unable to conceive a child. The Court avers that under Article 8 the applicant has a ‘right to gender identity and personal development’. There is, as of yet, no proof that gender identity is anything other than a belief. These cases, to the extent that they reach the Court, should do so under Article 9 and Article 10, freedom of belief and freedom of expression. But the Court can only hear cases as they are brought and its acceptance of the framing under Article 8 has helped reify gender identity as an aspect of our human condition, in inevitable tension with the material reality of sex. The obvious incongruence of presenting transsexualism as a matter of self determination but also as a ‘disease’ to be cured does not seem to concern the Court, even if it is the applicant himself to argue that he had a disease for which he sought treatment coverage by his insurance. The Court waves this all away in this paragraph:
81. The Court of Appeal also reproached the applicant with having deliberately caused her transsexuality. In evaluating her sexual identity and development, the Court of Appeal analysed her past prior to the taking of female hormones and found that she had only shown male behaviour and was thus genuinely male orientated. In doing so, the Court of Appeal, on the basis of general assumptions as to male and female behaviour, substituted its views on the most intimate feelings and experiences for those of the applicant, and this without any medical competence. It thereby required the applicant not only to prove that this orientation existed and amounted to a disease necessitating hormone treatment and gender reassignment surgery, but also to show the ‘genuine nature’ of her transsexuality although, as stated above (see paragraph 75 above), the essential nature and cause of transsexualism are uncertain.
In fact the Court also makes assumptions as to what constitutes male and female behaviour, otherwise it could not make any determination as to the transsexuality of the applicant, even if that means essentially accepting unproblematically that if a male feels female, he is.
The Court found a breach both of Article 6 and of Article 8. The only dissenting opinion focuses on the respective contractual rights of Mr Van Kück and the private insurance provider and does not dispute the reasoning with respect to the right of transsexuals to ‘live as the opposite sex’. The trans turn in human rights law is almost complete.
PS: I briefly discuss this case also here.