The European Court of Human Rights has delivered a good solid judgment today in the case YY v Turkey, concerning the inability of a trans man to access gender reassignment surgery, a precondition to legal gender recognition, on account of being still fertile.
The Court found a violation of Art 8, which turns on a peculiar feature of the Turkish law that requires persons seeking an authorisation to undergo genital surgery for the purposes of obtaining gender recognition, to prove that they are infertile, even before undergoing surgery. In most other relevant countries, sterilisation (whether alone, or as a part of a broader gender reassignment package) is a prerequisite to legal gender recognition, as opposed to being a precondition to gender reassignment leading to gender recognition as in Turkey. The Turkish government was not able to justify this requirement, which was thus held to be "unnecessary in a democratic society."
Interestingly, the Court undertook an extensive survey of national laws in the area, noted the trends towards abandoning sterilisation altogether, including by citing relevant Council of Europe legislation, although it stopped short from ruling out the sterilisation requirement in abstract, distinct from the particular set of facts before it.
Four concurring judges (so a majority of the Chamber!) would have preferred a more in-depth examination of the validity of the sterilisation requirement in abstract. This bodes well for future challenges provided that the right set of facts comes before the Court.
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